EFF to Ninth Circuit: No Software Exception to Traditional Copyright Limits(eff.org)
eff.org
EFF to Ninth Circuit: No Software Exception to Traditional Copyright Limits
https://www.eff.org/deeplinks/2024/03/eff-ninth-circuit-theres-no-software-exception-traditional-copyright-limits
38 comments
>Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21st century human in jeans and a t-shirt, not so much.
Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. The analogy given by the EFF also doesn't match and is subtly wrong. The unique character would still be made out of game assets you do not own; however, compilations of specific copyrighted works can be independently copyrighted without being considered a derivative of their components[0].
That being said, the EFF's amicus brief is really good and I agree with all of it, so I'm obviously expecting it to be shot down by a court system that consistently insists on treating copyright as a federal contempt of business model tort. Remember, it took Google like a decade just to get Oracle off its back for the crime of stealing... 30 function declarations. No actual code, just names and argument types.
Anyway, do we know what Oracle was actually suing Rimini for?
[0] e.g. that one bloke who copyrighted his MTG deck to troll the Copyright Office
Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. The analogy given by the EFF also doesn't match and is subtly wrong. The unique character would still be made out of game assets you do not own; however, compilations of specific copyrighted works can be independently copyrighted without being considered a derivative of their components[0].
That being said, the EFF's amicus brief is really good and I agree with all of it, so I'm obviously expecting it to be shot down by a court system that consistently insists on treating copyright as a federal contempt of business model tort. Remember, it took Google like a decade just to get Oracle off its back for the crime of stealing... 30 function declarations. No actual code, just names and argument types.
Anyway, do we know what Oracle was actually suing Rimini for?
[0] e.g. that one bloke who copyrighted his MTG deck to troll the Copyright Office
> Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement.
1. Don't conflate the game engine code with the assets made available by the game engine.
2. Depending on how the third-party levels are designed, the third-party levels may infringe on the copyright of the original game's levels, but can't infringe on the copyright of the engine code, unless the level files bundle the engine code. Copying (or similarity that almost resulted from copying) is a prerequisite to copyright infringement [1]:
> To win a claim of copyright infringement in civil or criminal court, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation.
If the terms on the game engine restrict what people can make with the game engine or how people can share what they make with the game engine, then the terms on the game engine go beyond the scope of copyright. An EULA can do that. Any contract that isn't just about copyright can do that.
[1] https://en.wikipedia.org/wiki/Substantial_similarity#Substan...
1. Don't conflate the game engine code with the assets made available by the game engine.
2. Depending on how the third-party levels are designed, the third-party levels may infringe on the copyright of the original game's levels, but can't infringe on the copyright of the engine code, unless the level files bundle the engine code. Copying (or similarity that almost resulted from copying) is a prerequisite to copyright infringement [1]:
> To win a claim of copyright infringement in civil or criminal court, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation.
If the terms on the game engine restrict what people can make with the game engine or how people can share what they make with the game engine, then the terms on the game engine go beyond the scope of copyright. An EULA can do that. Any contract that isn't just about copyright can do that.
[1] https://en.wikipedia.org/wiki/Substantial_similarity#Substan...
> Anyway, do we know what Oracle was actually suing Rimini for?
Making money in the Oracle ecosystem without Oracle getting a cut, presumably :)
Making money in the Oracle ecosystem without Oracle getting a cut, presumably :)
The existing precedent seems sensible,
> For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is "substantially similar" to a preexisting work in both ideas and expression.
To say that anything we might come up with is derivative because it happens to target some other API or system would eliminate almost all ability to create, in the software world especially. What we build stop a thing is our thing.
> For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is "substantially similar" to a preexisting work in both ideas and expression.
To say that anything we might come up with is derivative because it happens to target some other API or system would eliminate almost all ability to create, in the software world especially. What we build stop a thing is our thing.
This is most likely very unpopular opinion but the GPL also relies on this overly broad interpretation which leaves a bad taste in my mouth.
In short, the GPL considers linking your program with it a derivative work, even if the GPL program is not distributed alongside yours. There's some limitations on it which I'm not really qualified to define, but those roughly boil down to that if you use it over a "generic interface" (network, or calling it as a process) then it doesn't count as a derivative work.
The massive problem with this is that it's a huge overreach. You are not distributing anything from their program (only the symbol names in the binary, which shouldn't be considered a meaningful amount of original work) but you are obliged to follow the terms of the licence to interoperate with a GPL-licenced program.
Granted, this is not a huge problem in practice because the GPL specifically is not used by abusive corporations much, but a similar issue happens with the enforcement of "terms of service"-s based on clickwrap "contracts" you never actually agreed to when you visit a website. Those also argue that not following their ToS also counts as either redistribution of their copyrighted work, or unauthorized access to their systems, both are huge overreaches.
In short, the GPL considers linking your program with it a derivative work, even if the GPL program is not distributed alongside yours. There's some limitations on it which I'm not really qualified to define, but those roughly boil down to that if you use it over a "generic interface" (network, or calling it as a process) then it doesn't count as a derivative work.
The massive problem with this is that it's a huge overreach. You are not distributing anything from their program (only the symbol names in the binary, which shouldn't be considered a meaningful amount of original work) but you are obliged to follow the terms of the licence to interoperate with a GPL-licenced program.
Granted, this is not a huge problem in practice because the GPL specifically is not used by abusive corporations much, but a similar issue happens with the enforcement of "terms of service"-s based on clickwrap "contracts" you never actually agreed to when you visit a website. Those also argue that not following their ToS also counts as either redistribution of their copyrighted work, or unauthorized access to their systems, both are huge overreaches.
This is why RMS describes the GPL as a "judo throw" - the stronger you interpret copyright to be, the stronger the GPL is. The more conservatively you interpret copyright to be, well, that's what RMS ultimately wants - the reduction and elimination of copyright law and for information to be free.
Well, eliminating copyright would also remove the copyleft portions of the GPL, which are also aimed at user freedom. I would say just removing copyright would not achieve the professed goals of the FSF: without the requirement to provide source code to users, user freedom is still constrained through that imbalance in power, even if they are free to modify and distribute the binaries they have however they wish.
That's what FSF says. Did it actually get tested in the court? I think the concept that loading program into shared address space makes it derivative work is silly.
There's very weird language at the end of the GPL:
"The GNU General Public License does not permit incorporating your program into proprietary programs."
This is bizarre because "you" is defined as "each licensee," not "each licensor." It's also contradictory with the definition of "work based on the program," which only applies to works that use the program "in a fashion requiring copyright permission" -- which dynamic linking does not.
It's also hopelessly vague. What does proprietary mean here? There's no definition, and the common definition is simply that it describes something owned by someone... which includes every GPL'd program ever.
"The GNU General Public License does not permit incorporating your program into proprietary programs."
This is bizarre because "you" is defined as "each licensee," not "each licensor." It's also contradictory with the definition of "work based on the program," which only applies to works that use the program "in a fashion requiring copyright permission" -- which dynamic linking does not.
It's also hopelessly vague. What does proprietary mean here? There's no definition, and the common definition is simply that it describes something owned by someone... which includes every GPL'd program ever.
> You are not distributing anything from their program (only the symbol names in the binary..)
This is where I would expect to see the issue being contested. The pirate bay argued that they just provided symbols in the sense of torrent files, basically sign posts giving people direction to where the work is located. They were not distributing anything from the copyrights works.
The other side did not engage that kind of argument at all. Their focus is what users saw, which is that they went to the website and through technical means got access to the copyrighted work. The steps in between was primarily deemed as irrelevant technical details.
What "the work" is, and what "distributing the work" is are two very important step in any copyright case. It is why technical workaround for copyright usually never works, even if they are waterproof in theory. A personal favorite is freenet that split files into blocks rather than bytes, in the theory that a recipe that combines blocks that are shared among multiple files could not be claimed as distributing any individual file.
This is where I would expect to see the issue being contested. The pirate bay argued that they just provided symbols in the sense of torrent files, basically sign posts giving people direction to where the work is located. They were not distributing anything from the copyrights works.
The other side did not engage that kind of argument at all. Their focus is what users saw, which is that they went to the website and through technical means got access to the copyrighted work. The steps in between was primarily deemed as irrelevant technical details.
What "the work" is, and what "distributing the work" is are two very important step in any copyright case. It is why technical workaround for copyright usually never works, even if they are waterproof in theory. A personal favorite is freenet that split files into blocks rather than bytes, in the theory that a recipe that combines blocks that are shared among multiple files could not be claimed as distributing any individual file.
Does it in fact "rely" on it, or does that merely expand its scope? Even if its claims of what is "derivative" were diminished to exclude linking/API calls, the GPL would survive, albeit as slightly less viral.
The GPL is quite conscious of the fact that several of its terms would be useless in a sensible copyright regime.
That said, although both are "broad" they are quite different concepts. The linked "interoperability" cases involve 3 works/parties A, B, and C, and the EFF's claim is that A should have no rights regarding B+C just because B+A existed first. OTOH, the GPL's relevants to linking is that A has rights regarding A+B.
The US definition of "derivative work" is quite broad, and seems to cover linking just fine.
The Berne Convention, however, doesn't mention "derivative works", only specific traditional examples thereof, so it's possible that countries other than the US may have implemented it in such a way that linking doesn't count as a derived work. TODO look up "compilation" (in the copyright sense) and "collective work", which might actually be more relevant for linking?
Edit: "GPL is MAD in the copyright cold war" is a good phrase to describe things.
That said, although both are "broad" they are quite different concepts. The linked "interoperability" cases involve 3 works/parties A, B, and C, and the EFF's claim is that A should have no rights regarding B+C just because B+A existed first. OTOH, the GPL's relevants to linking is that A has rights regarding A+B.
The US definition of "derivative work" is quite broad, and seems to cover linking just fine.
The Berne Convention, however, doesn't mention "derivative works", only specific traditional examples thereof, so it's possible that countries other than the US may have implemented it in such a way that linking doesn't count as a derived work. TODO look up "compilation" (in the copyright sense) and "collective work", which might actually be more relevant for linking?
Edit: "GPL is MAD in the copyright cold war" is a good phrase to describe things.
> The US definition of "derivative work" is quite broad, and seems to cover linking just fine.
the problem is the GPL view seems doubtful and has not only bad implications for software copyright but copyright of... well literally anything else. I mean, remember what linking actually is (especially dynamic linking), you're basically just making references to certain things.
the analogy that I can best describe is this: if you're writing a paper on something whatever, and you link to a page number of a book, that doesn't make your paper a derivative work of that thing per se.
if I say in the middle of my novel new text on foobars and fozzinators, hey "book A page 32" has instructions for how to confabulate your fozzinator or "book B page 42" has the values needed to valienate your foobaz, referring to those things in general makes no sense to consider this originally authored book a derivative of A, B, or A and B.
or for a more concrete example, saying Microsoft should be the final authority on who can interoperate with their products or saying that the people who publish research are automatically derivative works of other peoples research[1] papers or people who write articles can't even REFER to other articles in such a way.
[1]: research itself may come from derivative ideas of course, but I'm talking about the copyrightable elements here; i.e. not the facts necessarily presented within, but rather how such facts are presented and laid out. copyright does not cover facts (true or false[2]), but your presentation of such facts are.
[2]: https://thowardlaw.com/2023/04/false-facts-denoted-as-actual...
the problem is the GPL view seems doubtful and has not only bad implications for software copyright but copyright of... well literally anything else. I mean, remember what linking actually is (especially dynamic linking), you're basically just making references to certain things.
the analogy that I can best describe is this: if you're writing a paper on something whatever, and you link to a page number of a book, that doesn't make your paper a derivative work of that thing per se.
if I say in the middle of my novel new text on foobars and fozzinators, hey "book A page 32" has instructions for how to confabulate your fozzinator or "book B page 42" has the values needed to valienate your foobaz, referring to those things in general makes no sense to consider this originally authored book a derivative of A, B, or A and B.
or for a more concrete example, saying Microsoft should be the final authority on who can interoperate with their products or saying that the people who publish research are automatically derivative works of other peoples research[1] papers or people who write articles can't even REFER to other articles in such a way.
[1]: research itself may come from derivative ideas of course, but I'm talking about the copyrightable elements here; i.e. not the facts necessarily presented within, but rather how such facts are presented and laid out. copyright does not cover facts (true or false[2]), but your presentation of such facts are.
[2]: https://thowardlaw.com/2023/04/false-facts-denoted-as-actual...
Regardless of whether companies like Microsoft should be the final authority, it is indisputable that they try to be. So MAD only has one answer.
I would dispute that pretty heavily. They're not, and obviously have never, claimed copyright over the DLL you made or whatever, nor the entire concept of linking to Windows APIs (as an example).
Mostly because that's, like the GPL, currently a way to get laughed out of court.
Mostly because that's, like the GPL, currently a way to get laughed out of court.
Well no, it doesn't rely on it (as in, if they didn't use this argument, the licence would still hold up quite well) but it definitely has an impact. For example, see GNU Readline which was explicitly licenced as GPL to encourage virality with the linking clause.
GPL defines interface requirement in order to provide simple packaging exception. By default GPL would extend to package, but if the interface requirement isn't met, it leaves package as a collection of disconnected files.
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> This is most likely very unpopular opinion but the GPL also relies on this overly broad interpretation which leaves a bad taste in my mouth.
Well, then, you're missing the point of the GPL. The point is to use copyright law against itself, with the goal of advancing user freedoms.
Not programmer freedoms, note ... but freedom for the user.
This thing that leaves a bad taste in your mouth is not the GPL, but the overly broad and restrictive copyright laws. The GPL is simply using those overly broad laws in a way to highlight just how bad they are.
If copyright was sane (or saner, anyway), the GPL itself wouldn't exist.
Well, then, you're missing the point of the GPL. The point is to use copyright law against itself, with the goal of advancing user freedoms.
Not programmer freedoms, note ... but freedom for the user.
This thing that leaves a bad taste in your mouth is not the GPL, but the overly broad and restrictive copyright laws. The GPL is simply using those overly broad laws in a way to highlight just how bad they are.
If copyright was sane (or saner, anyway), the GPL itself wouldn't exist.
it's also worth bringing up some arguments made by Theodore Tso over this very issue in 1998[1]:
> Consider the following --- what defines "link"? Does an RPC call mean linking? What about shared libraries? What about making calls via the system call interface? What about running GPL'ed programs via the system() command from a commercial program? If you take things to extremes, a commercial program which uses the system() program will be interfacing with the GPL'ed /bin/bash on most systems --- is that considered "linking"?
> And if not, what is the legal distinction between what /etc/ld.so does when it maps a GPL'ed library into memory and the thread of control is temporarily tranfered from propietary code to GPL'ed library code when a library function is called, and what happens when a propietary program calls system() and the kernel maps /bin/bash into system memory, and the thread of control transfers temporarily from the propietary program to /bin/bash? You can see how things can get quite ridiculous quite quickly.
> [...]
> The FSF assertion also a very dangerous legal argument to make. If this is true, does this mean that if you write code which happens to make use of interfaces developed by Microsoft and implemented by Microsoft DLL's, that Microsoft somehow has a claim over your code which it could enforce via copyright law? What about any i386 assembly code which makes use of the Intel machine language? Does Intel now have a copyright claim on all i386 object code, and can try to prevent people from executing i386 object code on non-Intel processors? (After all, when a Pentium interprets your object code, one could argue that it is "linking" your object code with the Pentium microcode, which is copyrighted by Intel....)
> What the FSF is trying to advocate is one step down the slippery slope of interface copyrights, and we really, really don't want to go there.
i've seen arguments especially after the Google v. Oracle[2] decision and I think one in particular mentioned the sort of "reality distortion field"[3], which I found to be interesting, especially because a lot of open source projects that are GPL tend to rely on the good-naturedness of other users using their code in a way that's positively in spirit with the GPL. (which, to be fair, has probably helped open source immensely.)
but as Tso points out, therein lies a contradiction with GPL that at if its maximal interpretation to be correct, it's much much more dangerous, than if the GPL effectively is equivalent to the LGPL. but I don't think that (barring a world pre-this-case) this world is the one that is so. (no idea how the AGPL fits into this though, that sounds like a PITA.)
if I were ruler of the world, I'd say that symbol names are a matter of fact and thus should probably not be copyrightable by themselves. but then again I don't rule the world, and I'd probably have other things to change as well, even about copyright.
[1]: https://yarchive.net/comp/gpl_linking.html
[2]: https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
[3]: https://news.ycombinator.com/item?id=30404270
> Consider the following --- what defines "link"? Does an RPC call mean linking? What about shared libraries? What about making calls via the system call interface? What about running GPL'ed programs via the system() command from a commercial program? If you take things to extremes, a commercial program which uses the system() program will be interfacing with the GPL'ed /bin/bash on most systems --- is that considered "linking"?
> And if not, what is the legal distinction between what /etc/ld.so does when it maps a GPL'ed library into memory and the thread of control is temporarily tranfered from propietary code to GPL'ed library code when a library function is called, and what happens when a propietary program calls system() and the kernel maps /bin/bash into system memory, and the thread of control transfers temporarily from the propietary program to /bin/bash? You can see how things can get quite ridiculous quite quickly.
> [...]
> The FSF assertion also a very dangerous legal argument to make. If this is true, does this mean that if you write code which happens to make use of interfaces developed by Microsoft and implemented by Microsoft DLL's, that Microsoft somehow has a claim over your code which it could enforce via copyright law? What about any i386 assembly code which makes use of the Intel machine language? Does Intel now have a copyright claim on all i386 object code, and can try to prevent people from executing i386 object code on non-Intel processors? (After all, when a Pentium interprets your object code, one could argue that it is "linking" your object code with the Pentium microcode, which is copyrighted by Intel....)
> What the FSF is trying to advocate is one step down the slippery slope of interface copyrights, and we really, really don't want to go there.
i've seen arguments especially after the Google v. Oracle[2] decision and I think one in particular mentioned the sort of "reality distortion field"[3], which I found to be interesting, especially because a lot of open source projects that are GPL tend to rely on the good-naturedness of other users using their code in a way that's positively in spirit with the GPL. (which, to be fair, has probably helped open source immensely.)
but as Tso points out, therein lies a contradiction with GPL that at if its maximal interpretation to be correct, it's much much more dangerous, than if the GPL effectively is equivalent to the LGPL. but I don't think that (barring a world pre-this-case) this world is the one that is so. (no idea how the AGPL fits into this though, that sounds like a PITA.)
if I were ruler of the world, I'd say that symbol names are a matter of fact and thus should probably not be copyrightable by themselves. but then again I don't rule the world, and I'd probably have other things to change as well, even about copyright.
[1]: https://yarchive.net/comp/gpl_linking.html
[2]: https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
[3]: https://news.ycombinator.com/item?id=30404270
EFF is right. Copyright should be only limited, not expanded. It's already way too overreaching.
New legislation will trump court rulings, and I can't see this one lasting long with Right to Repair legislation happening. Right to Repair requires making compatible versions of software.
> I can't see this one lasting long with Right to Repair legislation happening
I can't see them lasting together either, but that's because I don't see serious Right to Repair legislation happening.
I can't see them lasting together either, but that's because I don't see serious Right to Repair legislation happening.
Is it really necessary to make these kinds of comments? What good comes from spreading negativity? Are you hoping this encourages someone else to be equally dismayed?
What good comes from avoiding discussion of possible negative outcomes? I'd rather this thread go down the path of what obstacles exist in the face of realizing right to repair in the long term over being an echo chamber about how good it is or something like that.
No good comes from spreading a defeatist attitude. It undermines any attempt at positive change. A call to action or specific critique may be interesting or constructive. Saying “this will never happen” isn’t helpful and doesn’t invite conversation.
> I'd rather this thread go down the path of what obstacles exist in the face of realizing right to repair in the long term over being an echo chamber about how good it is or something like that.
The comment in question offers no insight or justification for the belief. How does this encourage the type of conversation you want to see?
In fact it does the opposite. It shuts down conversation before it even begins because why waste the effort on a hopeless cause?
> I'd rather this thread go down the path of what obstacles exist in the face of realizing right to repair in the long term over being an echo chamber about how good it is or something like that.
The comment in question offers no insight or justification for the belief. How does this encourage the type of conversation you want to see?
In fact it does the opposite. It shuts down conversation before it even begins because why waste the effort on a hopeless cause?
It's not about spreading negativity, it's about spread awareness. People have been getting tricked about right to repair for many years now. They need to realize what's actually happening.
What does saying “this will never happen” spread awareness of other than the futility of even trying?
I never said "this will never happen". I said "I don't see this happening". There's a rather crucial difference between these two. The former is a prediction about the future; the latter is an observation of the current trajectory.
Example: Imagine you've dropped out of college, and your mom says that she doesn't see you getting a well-paying job. That doesn't mean she believes you're a lost cause, it just means she believes (whether rightly or wrongly; that's beside the point here) that you need to change course. i.e. she believes you need to stop believing you're on the right path, and that you instead need to finish your studies.
To bring the analogy back to R2R: almost much every R2R bill in the US that I've seen so far has been severely crippled by special interests (sometimes at the 11th hour), while conceding just enough (e.g., letting consumers replace a battery just a little less painfully) to make people feel like they're winning a war that they're actually losing pretty hard. So the point here was to make people aware that (I [and others] believe that) the current trajectory isn't very promising as far as reaching their goals, and needs to change.
Example: Imagine you've dropped out of college, and your mom says that she doesn't see you getting a well-paying job. That doesn't mean she believes you're a lost cause, it just means she believes (whether rightly or wrongly; that's beside the point here) that you need to change course. i.e. she believes you need to stop believing you're on the right path, and that you instead need to finish your studies.
To bring the analogy back to R2R: almost much every R2R bill in the US that I've seen so far has been severely crippled by special interests (sometimes at the 11th hour), while conceding just enough (e.g., letting consumers replace a battery just a little less painfully) to make people feel like they're winning a war that they're actually losing pretty hard. So the point here was to make people aware that (I [and others] believe that) the current trajectory isn't very promising as far as reaching their goals, and needs to change.
> I never said "this will never happen". I said "I don't see this happening".
Give me a break. There’s no difference there.
> So the point here was to make people aware that (I [and others] believe that) the current trajectory isn't very promising as far as reaching their goals, and needs to change.
Then say that instead. Your original comment didn’t even resemble this point. It was drive-by negativity.
The only engagement you got was me saying your comment isn’t constructive. Because it isn’t. Nobody else was interested in making up an interesting point to respond to.
Give me a break. There’s no difference there.
> So the point here was to make people aware that (I [and others] believe that) the current trajectory isn't very promising as far as reaching their goals, and needs to change.
Then say that instead. Your original comment didn’t even resemble this point. It was drive-by negativity.
The only engagement you got was me saying your comment isn’t constructive. Because it isn’t. Nobody else was interested in making up an interesting point to respond to.
> Give me a break. There’s no difference there.
I literally explained the difference.
But yes, please do take a break. That's much better and healthier for everybody than engaging in an online battle with multiple people.
I literally explained the difference.
But yes, please do take a break. That's much better and healthier for everybody than engaging in an online battle with multiple people.
The idea that states should have some of their own industrial/consumer negotiating-power/say is very very new. Interesting to see it kicking in, happening in bits & bobs, but also so slow.
And so many states just make up total horseshit as they please, running afoul of good sense & lacking any limitations. Books being challenged and banned, wild social media laws bossing companies around as they please all sort of wild shit trying desperately desperately to re-aasert itself after a Manifesto fo Cyberspace era has begun to offend particular people in their state.
All it takes is one or two absolutely off the wall federal court rulings to totally upturn the cart & lay bedlam to how stuff can get made. The state based system is interesting, but over it all is some federal judges picking what they please decisions to make basically immutable & un-upturnable.
And so many states just make up total horseshit as they please, running afoul of good sense & lacking any limitations. Books being challenged and banned, wild social media laws bossing companies around as they please all sort of wild shit trying desperately desperately to re-aasert itself after a Manifesto fo Cyberspace era has begun to offend particular people in their state.
All it takes is one or two absolutely off the wall federal court rulings to totally upturn the cart & lay bedlam to how stuff can get made. The state based system is interesting, but over it all is some federal judges picking what they please decisions to make basically immutable & un-upturnable.
Did Micro Star really infringe on the Duke Nukem story? The maps were sequels and copied only general theme Duke Nukem story - a Los Angeles shooter with guns and grenades. But that sounds too generic, Rambo, Dredd or Terminator might do something similar.
TLDR this is their argument. Have to see if any court or congress accepts it.
Relevant to this issue, Cory discusses how this (ab)use of copyright is what enables gigantic tech companies and walled gardens, because competing with them is not a technical problem, but rather a legal problem. He's right! (At least for now until the wet dreams of the DRM people are realized and there's hardware DRM baked into everything). If people could without fear of lawyers build stuff, big tech would have to compete on merits and user experience rather than wielding armies of IP lawyers and legal threats.
[1]: https://craphound.com/internetcon/