Would you believe that Disney’s famously copyright-maximalist lawyers have just brought us a nice victory for fair use?

Earlier this year, we wrote about disgraced former Congressman George Santos suing Disney and Jimmy Kimmel after Kimmel used some of Santos’ Cameo videos (that Kimmel had secretly requested) in a, well, somewhat trollish fashion. Santos, who was drummed out of Congress after facing a bunch of charges regarding questionable handling of campaign funds, started promoting that he would record Cameo videos for between $350 and $500 a video.

At one point, he had bragged about how many people had paid him for Cameo videos. This resulted in Kimmel having his staff purchase some Cameo videos, which made Santos look silly. The videos were then played on Kimmel’s ABC late night show. Santos claimed that the videos were purchased under a “personal” use license, which was a lot less expensive than a commercial use license.

The argument was that the videos were used “commercially,” which meant that the license had been violated, and the videos infringed on Santos’ copyright. In my initial write-up of the case, I pointed out that Kimmel had a very strong fair use claim. Some commentators felt that Santos’ argument was a bit stronger than I made out, but it appears the judge in the case, Denise Cote, who has been involved in a number of high-profile copyright cases, agreed with me that it was fair use.

Notably, she granted Disney and Kimmel’s motion to dismiss on fair use grounds. That’s important because some people believe that fair use shouldn’t be decided so early in a case. Either it should go to the summary judgment stage or (much worse) is an issue for a jury to decide.

However, Cote says here that Kimmel’s use was pretty obviously fair use. She notes that the Second Circuit has said that in obvious fair use cases, you can find fair use at the motion to dismiss stage:

The Second Circuit has specifically acknowledged “the possibility of fair use being so clearly established by a complaint as to support dismissal of a copyright infringement claim.”

As in most fair use cases, the court went through the basic four factors test required to determine fair use. The court awarded the first factor (purpose of the use) to Disney/Kimmel because it was clearly about commentary on Santos:

In short, a reasonable observer would understand that JKL showed the Videos to comment on the willingness of Santos — a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent contribution scheme — to say absurd things for money. Thus, the Videos were used for political commentary and criticism, purposes that do not supersede the “objects” of the original Videos.

The fact that the use of the videos made Santos look bad doesn’t matter:

Santos’s argument that the defendants should not be able to “seek refuge in the fair use concept of transformation that they themselves manufactured through deceit” finds no support in copyright law. Defendants’ conduct may have been deceptive and unkind, but the Supreme Court in Warhol emphasized that whether a work is transformative turns on neither the “subjective intent of the user,” 598 U.S. at 544, nor the “stated or perceived intent of the artist.” Id. at 545 (citation omitted). A court must instead conduct “an objective inquiry into what use was made, i.e., what the user does with the original work.” Id. Here, the purpose of the defendants’ use was clearly for criticism and commentary of the Videos themselves and their author.

While not always true, the first factor is often the key to winning fair use. The fact that it was found to be favoring Kimmel here basically makes the rest of the analysis less important, but even so, the rest of the factors either favor no one or Kimmel anyway.

On the second factor, the nature of the work, the court says this is mostly neutral, but perhaps favors Kimmel/Disney slightly. The third factor, how much of the work was used, is also deemed to be neutral. It did use the entirety of the work, as other courts have found, but that’s fine if you need to use the entirety of the work for the fair use at hand.

Copying “the entirety of a work is sometimes necessary to make a fair use.” Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 90 (2d Cir. 2014). The “ultimate question under this factor is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying.”….

…. The use of the Videos to criticize and comment on a public figure would have been undermined by showing less than the entirety of the Videos, because the audience would not know whether Santos had indeed said everything in the requests.

Then there’s the fourth factor: the effect on the market. As I had noted in my original piece about the complaint, it would be difficult to argue that Kimmel’s use would harm the market. And, indeed, that’s what the court found as well:

Santos argues that defendants’ use devalued the market for Cameo videos, including Santos’s, by “undermining the integrity” of the Cameo.com platform. Santos does not explain how any impact on the popularity of the Cameo platform — which is entirely speculative — impacts more specifically the public interest in the creative production of new expression. Moreover, the FAC identifies no harm to the potential or existing market for the Videos that Santos created for the defendants, other than the “very use at bar.” Swatch, 756 F.3d at 91 (citation omitted). Thus, this factor weighs in favor of fair use.

Put it all together and you have two mostly neutral factors and two that weigh towards fair use, and thus: fair use.

Taking all four factors into consideration, the defense of fair use is clearly established by the FAC and documents integral to it. The defendants’ use of the Videos was transformative; “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

The court also rejects the breach of contract claims, saying that those are basically arguing the same thing as the copyright claims, and are thus pre-empted.

It wouldn’t surprise me if Santos appeals, but this is a good clean, fair use win. Disney’s copyright lawyers aren’t regularly known for arguing on behalf of fair use, but in this case they were right to, and it’s nice to see the court agree.

Update: And, yup, Santos has already told the court that he’s appealing.

Planning in RPGs is not a fun activity, so don’t do it.
Planning in RPGs is necessary so that we don’t get our characters killed.
Both of those statements are true.

The optimal way planning should work in your game is somewhere in the middle of those two statements. The optimal way is a combination of genre and play style. And if we were to discuss what that looked like up front, we could define how much planning was necessary for the game we were playing, so that our games had the right amount of planning, minimizing the un-fun-ness (take that Bob, our editor), and making it effective enough to keep the characters alive (at least most of them). Let’s talk about how to do that.

Is Planning Un-Fun?

I think so, and I say that as a person whose day job is planning things, and outside of work I plan everything else in my life. In RPGs, planning is just not that fun of an activity. It often consists of the table coming up with ideas and then saying “…but what about this?” going around and around in circles. If you are a player participating in the process, it can be a bit draining, but if you are the GM, waiting for the players to come up with a plan, then you are just sitting there on the outside. It is not how I want to spend my gaming time.

Is Planning Necessary?

Having a plan is a good idea because it aligns the group in terms of their goal and how they are going to achieve it. It allows the group the time to figure out how to best use their resources (equipment, powers, etc). These things greatly increase the group’s chances of being successful and surviving. 

The Components of a Plan

Let’s take a few moments and discuss what makes up a plan. A good plan has all of these, and lesser plans lack detail or are missing some of these parts: 

• The Goal/Objective – A plan must have an objective. What are we doing? This goal should be shared by the entire group. Are you going in to steal the money? Or are you here to rescue your ex-wife from the Prince? If you are not on the same page about the goal, the group may pursue different goals, split up their resources, or at worse come into conflict.

• Milestones – The smaller objectives you need to achieve to build up to the goal. It could be disarming the alarm system, or stealing a key from the guard. Some milestones will be in temporal order while others may occur at any time.

• Information/Intelligence – plans run on information. You can’t plan if you don’t know where you are going, what to expect, how many guards, the terrain around the location, etc. When you lack information you start to make guesses (see below).

• Risks – Risks are the things you don’t know but think are possible. Risks can be things like a hidden alarm system. Or something like, “What if we can’t take out the guards quietly?” In addition, Risks have a probability (how likely they are to occur) and an impact (how big of a problem it is when they come true). A lot of people who are bad with risks spend too much time worrying about how to handle low probability/high impact risks over high probability/lower impact risks. 

• Mitigation and Contingencies – Hand in hand with risks are Mitigations (how do we make risk less likely to occur — lower probability) and Contingencies (what do we do if that risk comes true — lower the impact). You can manage neither, one, or both of these. The trick is deciding for each risk what you want to manage. 

This is why Planning is difficult and may not be fun. It is a lot to manage and done well it takes time – time that you are not playing the game. 

The Trust Issue 

The reason that people tend to over-plan is that they fear that there is some piece of information that if the players knew before they put their plan into action, would ensure the success of the goal or prevent excessive harm/death to the characters. To combat this, players do one or both of the following: 

• Collect as much information/intelligence as possible; at times to excess. 
• Perform excessive Risk mitigation — naming risks, and coming up with mitigations and contingencies. 

In fact, as a GM, you will know this is happening in the game when these two actions take over the session. When characters feel like they know enough, is when they are ready to switch from planning to action. 

Genre and Playstyle

Before we get to the social contract part of this… we need to discuss two more things. 

Some Genres have plans as one of the tropes. If you are running a game about thieves and heists, or a military game about Spec Ops missions, then those genres require some degree of planning. These games are also best served by mechanics that help compensate for suboptimal planning or help mitigate the lack of planning that occurs at the table. Look at how Blades in the Dark and other Forged in the Dark games remove the need for extensive planning by using mechanics to simulate good planning done by the characters rather than the players.

The other thing is play-style. Some groups get off on playing the cat and mouse game, where the GM comes up with a plan and twists and the players face off to come up with a plan to outsmart the GM. Others want nothing to do with planning. Whatever brings your entire group joy, then there is no wrong-bad-fun, as long as you all, as a group are on the same page.

The Social Contract of Planning

The truth is that not all RPGs need the same level of planning, but unless you establish that fact, most players will assume they do. 

Some genres do not lean into detailed plans. Superhero games often rely on bold action and powers to overcome problems, not intricate plans. Pulp games also favor action over plans as well. So as you establish your game, consider what the genre and your setting should favor and then combine that with your play style. 

An example: My players had recently finished a Night’s Black Agents campaign. It was a game where planning was key, and the game had some mechanics to support planning. The players knew not to move from planning to action until they had enough intel. They would sometimes spend a session collecting intel and making a plan. Currently, we are playing Mutants in the Now, a game inspired by the Teenage Mutant Ninja Turtles game and comic. In our most recent session, the players were working on a plan for how to attack a Yakuza hotel where some mutant animals were being trafficked. They started to work on a plan worthy of Night’s Black Agents when I reminded them that this game was more action-based. They quickly simplified their plan to “We rappel to the top of the hotel and fight our way to the bottom while rescuing the other mutant animals along the way”. A perfect plan for the setting and genre. 

The key to having players not over-plan is trust between GM and the player. As the GM, I am telling the players that I am not going to punish them for choosing a simple plan. For the players, it is trusting that I am not withholding some key piece of information that would break their simple plan. 

That is not to say you cannot have a twist. The twist is a time-honored trope in all plans. The twist is the unexpected thing that the players have to deal with in the middle of executing the plan which can cause the plan to alter it on the fly. The difference is that what I am promising, as GM, is that the twist will not up-end or thwart the plan. Rather it will be a fun surprise that the characters can deal with.

This is the social contract of planning as a group, for the game you are running (genre and mechanics) and the way you like to play (style). Agree with how much planning is necessary for this game, in general. You can come up with things like this:

• This game is about a sci-fi Spec Ops team, and the mechanics are gritty, you are going to want to have a good plan before executing an operation. 
• This game is about mutant animals fighting other mutant animals and criminals, you don’t need more than a simple plan, as most things you encounter are going to be resolved by fighting.

By doing this you are creating expectations for the whole group on how you should handle planning. This is the social contract that you agree to and guides how you play. Establish this in Session Zero and you can set the tone for planning in your campaign, and help keep planning to exactly what it needs to be for your game.

A quick note. Even after you establish a level of planning as part of your game, you can have a story where you change the amount of planning for that session. All you have to do is indicate to the players the change so that they can reset their expectations.. 

Plan Out Your Planning

Planning is not always fun in games, and it can be worse if you are over or under-planning based on the game you are running. But like most things in RPGs, if we do some upfront communication and set some expectations we can dial in planning to just the right amount for the game we are playing. 

This expectation along with any planning mechanics that the game provides can make planning far less tedious while being effective, and make for an overall play experience. 

How do you handle planning in your games? How do you set those expectations with your players? What planning tools do you use or what planning mechanics do you employ?

There has been a lot of talk about Intel and price increases over the past week or two, some wild some less so.
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The post Are the Intel price increases real? appeared first on SemiAccurate.

We have pointed out just how ridiculous Elon Musk’s SLAPP lawsuit against the Center for Countering Digital Hate is, so much that I supported the filing of an amicus brief in support of CCDH, even as I find CCDH’s positions and research to be generally problematic and misleading. But, even if their research methods aren’t great, they still deserve their right to speak out, and they should not face ruinous litigation from a petulant CEO who only pretends to support free speech.

On Thursday, there were oral arguments in the case, and to say they did not go well for Elon would be an understatement. The judge appeared to openly mock the company for its terrible legal arguments. And, most importantly, he (correctly) pointed out how “antithetical” to free speech this lawsuit appeared to be:

“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.

“You’re trying to shoehorn this theory by using these words into a viable breach of contract claim,” the judge added.

This was exactly the point that was raised in the amicus brief (brilliantly put together by Harvard’s Cyberlaw clinic). That the claims of “breach of contract” were a nonsense attempt to stifle speech, and hoping that by not including a defamation claim it would somehow avoid First Amendment scrutiny. The judge, Charles Breyer, seemed to have figured out ExTwitter’s sneaky plan pretty easily.

Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn’t Musk’s X bring a defamation suit if the company believes X’s reputation has been harmed?

“You could’ve brought a defamation case, you didn’t bring a defamation case,” Breyer said. “And that’s significant.”

Yeah, because everyone knows that there was no actual defamation.

The judge appeared also to see through the nonsense of the breach of contract claims directly. ExTwitter claims that CCDH should be liable for the loss of ad revenue of advertisers leaving the platform in response to CCDH’s research report. But, the judge pointed out how tenuous this was, to the point of calling the argument “one of the most vapid extensions of law I’ve ever heard.”

But in order to make this case, X had to show the group knew the financial loss was “foreseeable” when it started its account and began abiding by Twitter’s terms of service, in 2019, before Musk acquired the site.

X lawyer Hawk argued that the platform’s terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.

And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.

This logic confused and frustrated the judge.

“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer said.

There are times, in a courtroom, where you shouldn’t read very much into things a judge says. And then there are times where it’s pretty clear the judge understands just how how wrong one side is. This is one of the latter cases.

According to a friend who attended the hearing (virtually, since it was on Zoom), these quotes don’t even get to how bad the hearing was for Elon. Apparently, at one point the judge asked ExTwitter’s lawyer “are you serious?” which is never a good thing. ExTwitter’s lawyer also had to walk back a few arguments in court, including when the company tried to apply the wrong terms of service to a separate non-profit they had tried to drag into the case. And, finally, towards the end of the hearing, apparently ExTwitter’s lawyer tried to claim that they had pled actual malice (which, you know, is kind of important), only to have CCDH’s lawyer point out that they had not. CCDH is right. You can look at the amended complaint yourself.

None of that is likely to go over well with this judge.