Normalised chaos

The details of this court case can be found online. I will not go into great detail, but give you a rough sketch of the problem.

Boy meets girl. Boy signs up for Disney+ trial, but doesn't actually buy it. Girl has allergies. Boy invites girl to a restaurant, Girl gets allergic and dies. Boy gets angry and sues restaurant.

Disney, believe it or not, uses the fact that there's a hidden "forced arbitration clause" somewhere in the Disney+ free trial agreement, to … well, not exactly have the case thrown out of court, but for the case to be arbitrated by an interested party…

Now, if you're like me, you'd say, "Disney is going to have a scandal on their hands", and that there will be a court ruling like the one that took place a while ago, because of an old woman being scorched by her coffee.

However, that is not what's happening. Much of the discourse is focused on accepting what Mr Rossmann likes to call the "premise of the bully".

I will do something else. I will ask you, if you honestly believe that a random document that nobody reads or can read and provide an informed consent to, should be legally binding. Suppose the "terms of service" associated to that restaurant contained fine print instead of this being an unrelated document, should it then result in the right to have their rights be defended in court be diminished.

This begs the question of consent. As independent consultants, we found that rather typical agreements take a long time to process, a 2000 word agreement, written in a straightforward language, that is non-exhaustive, and leaves a lot to the discretion of the parties, takes around a week to process, with help of a lawyer. As you can imagine asking a lawyer to look through the Adobe End-user licence agreement, is going to be quite expensive. Furthermore, it is quite prone to the sunken cost fallacy, having read, understood and rejected the EULA, the user is likely to feel that they have wasted time and money; as if they could immediately tell if something is a shit sandwich, without going in-depth.

Even you, dear reader, would like not think twice about signing a EULA that contained a forced arbitration clause, if all that you knew about it, was that it is an alternative, cheaper, faster and often more efficient way of settling disputes. You would only begin to object to that clause once you realise that the arbitration will land you enough money to buy a used Nissan as compensation for the restaurant wrongfully killing your mum. You don't understand, nor can you, the implications of some of these clauses, because you didn't have teams of lawyers spend hours designing the clause in that specific way.

Thus, we can safely say that EULA-roofying, another apt term coined by Mr Rossmann, is quite an efficient method of saving costs; you can hide whatever you want in there, few people will read, fewer will understand, and fewer still will reject having spent that amount of money. It is not unusual for businesses to hide such clauses. It is, however, unusual that people are accepting of those terms being binding.

I will say this another way. Imagine that I walked into the court room, and shouted "hwaet". And then proceeded to say that the court has now legally binding documents that I literally pull out of my arsehole, to demand damages for the accuser (let's call him Señor Boyfriendo), in the size of the restaurant's triple yearly revenue.

How, you might ask? Well, "By hearing the expression hwaet and not replying with I am a dumbfuck within 30µs of hearing the first syllable, the party hereby consents to disregard any previous agreements between itself and the defendant. This agreement similarly sells my soul to the devil; (let's face, it he already owns it), to pay whatever exorbitant damages the defendant may deem sufficient (can you really put a price on a human life), and to life imprisonment. This agreement can be terminated with a two week's prior written notice written in pre-quranic Arabic¹ to the Greybeard Legal consulting headquarters, 1024 Magellan Avenue, Alpha Centauri, Milky Way. Without notice, this agreement is automatically terminated after a reasonable amount of time: a galactic cycle²."

The terms are not in fact outrageously more stringent than the ones presented in court. Further, you could make the reasonable argument that I was acting in bad faith when I presented the opt-out ability for a brief period, with a derogatory term, and in an unusual manner. Congratulations! You now understand the problem.

The main problem isn't so much that there are contracts and terms of service, but that these are used to extract more and more leverage and control. Fortuitously, some forms of EULA-roofying like warranty void if removed stickers, are unenforceable. But this is far from all-encompassing, forced arbitration is just one example of many.

I cannot even approximate the skill of Mr Rossmann's channel, that as of late is dedicated to bringing our attention to these sorts of issues. I will however point to a few major problems that we have right now.

When reading this section, think of Famine as in the Amazon adaptation of Good Omens; a fancy restaurant connoisseur with chow as a legally distinct alternative to food. Here we shall mostly talk about the problems that happen outside of EULA-roofying, but still closely related to the substitution of concepts.

I will specifically refer to a common practice of lobbying, substituting commonly accepted terms for commonly misunderstood simulacra and of optimising away the good.

We live in a world of lies. Systemic lies. Lies which are only technically protected under law for very specific reasons, most of which are outdated, some were never well-thought out, and some which were a much milder version of the proper solution.

While we could refer to the Disney lawsuit again, I believe a fresh example would be good.

As per usual, we start with something that seems benign, but gradually becomes less and less acceptable, until finally one realises that even the original "benign" form had fundamental problems, that couldn't be fixed with more elbow grease. That the original intent was a contrivance from the word "go".

I am, of course, referring to the famous petition of "Stop killing games". It is a petition, not a ruling, that within the EU, is going to mandate that games be left in a playable state. For single-player games, it can be summarised as legal removal of always online DRM. For multi-player games, it can be summarised as a requirement to provide infrastructure to host own servers.

Now, one might believe that this is an initiative that is going to warrant unanimous support from the consumers, some mild derision from game makers and harsh critique from game publishers. While that is generally the case, there are few flies in the ointment.

The response that I consider the most measured is that of the publishers. They don't want to do it, because of economic pressures. Imagine a moment in history where humanity decided that certain business practices, such as stealing or defrauding your customers is considered unacceptable. Who would be surprised at the snake oil salesmen being against that regulation. The backlash is mild, considering the amount of extra work, but to be quite honest, publishers can simply shift the cost onto the customers, or not publish their games in the EU. It sucks that what used to be available on good terms is now unilaterally not available. Maybe the EU should be put onto the registered CEX offenders list!

Seriously though, I did not expect defence, and I mean genuine defence coming from either users or game developers ⁵. For a user, this is nothing but good news. You used to buy something that you could own in perpetuity, and now this right is enshrined by law. From the game developers' point of view, this isn't much of a problem either. Sure, you could be made to do this work gratis, but now you have an argument of "hey, you're going to pay me twice, for installing Denuvo and then for stripping it out; maybe we just skip it? Or remove it once someone cracks the game"? In all seriousness this wouldn't add more work related load to game programmers, because they're already tired and overworked. All this will result in, is more people being hired in support roles.

I would have thought that this is a basic thing that most engineers would be able to grasp. Apparently not. Apparently, instead of looking out to one's own interest, they believe that it is their solemn duty to brown nose up to their management. Take this "wonderful" example:

While I could demolish this argument one step at a time, many on reddit have already done so, despite that platforms every effort to be as corporate-friendly as humanly possible.

Instead, I will focus on a big picture problem. We assign piracy protection some non-negligible, non-negative value. As a former game developer I disagree with the former, as a longer-term former pirate I disagree with the latter. We concede that fewer, cheaper but better thought-out games with a focus on single-player are not every game. We take without question that moving towards games that do not expire once the plug is pulled will result in more work rather than less. But in all of this, we forgot to argue.

The landscape of games is shaped by what is considered acceptable in society. It used to be that exploiting the vulnerable, and turning what has largely become an art form into glorified slot machines was considered an acceptable business practice until a few years after it was determined that surprise mechanics lead to predictable lawsuits. A new piece of regulation simply changes the optimal strategy. Suddenly releasing one's game as a complete experience without DRM becomes a viable option, because the economic incentives of the more scummy business practices get compensated with legal pressure.

One particularly enthusiastic opponent of the initiative has come up with the following "exemplary" counter-point. "I love live-service games. This regulation is going to kill them. You cannot take away my live-service games". The particular problems with this statement are that there were games before live service models were viable (largely due to the unregulated nature of this space). Those, in turn siphoned resources away from single-player projects and altered the direction of existing ones. Dead Space 3 comes to mind as a particularly painful example affected by the live-service craze. You cannot claim the sanctity of life as defence for a murderer, un-ironically.

Further to the point, none of the opponents of the initiative seem to notice that there is an egregious violation of one's expectations. When I see the word "buy" regardless of what the EULA states, I expect an exchange of one commodity that is given to me as a permanent possession, that I may not necessarily be allowed to replicate, but one I can definitely expect to keep in working order and repair. I understand that asking the manufacturer to keep the commodity in working order is wishful thinking outside a few notable examples; but I do not expect a kill switch in what was bought. Furthermore, I do not expect the object to go from completely functional to completely non-functional in a preventable fashion.

While it would be a fair point to state that there hadn't been similar issues in the past, particularly surrounding SecuROM, it would be disingenuous to stop there. The ruling that permits applying a NoCD patch to those games, did not, in fact, lead to a total collapse of the gaming industry. The only market that it would infringe on, that of older titles that can no longer be played, is paradoxically doing well: Nightdive are remastering old classic after old classic.

So why do we see this backlash from developers specifically? I don't know. Honestly, I sincerely hope that this is some form of public penance and loyalty, because if game devs have become that stupid, the outlook on the future of games as art is grim.

Within this backlash there are interesting ideas that are worth discussing? Should the game developers and publishing studios be included in the discussion? As a former game-dev, I'd argue, that paradoxically – no, they should not, or at least that there should be equal representation.

Specifically, Ex-blizzard know-it-all-s that love live services are in the super-minority of game-devs. A large chunk of them are miners in Minecraft and Minors in Roblox. Some have done a solo project and got a real job, but still occasionally dabble and eventually release. Some are prodigies that work on Ultrakill, or Cultic or Selaco, some produce a-dime-a-dozen filler on Steam. Some work on mods, some work in larger teams, some work solo. Some got disillusioned by working at a game company, and being laid off right after release. Some got disillusioned during gamergate. I'm willing to bet that these groups have differing views on the matter.

The question of representation aside, suppose we only invite the game developers that would be affected; what do you do about the inherent conflict of interest? You see, there must have been a time between one million years ago and today when the concept of fraud didn't exist, and there were rather successful commercial ventures that relied on fraud. Wouldn't those ventures vehemently defend their own business model? Specifically, don't you think that they'd fight tooth and nail to have the common folk, those who actually control society, believe that not only is their business model legitimate, that without it, society would suffer a great loss?

There is no evidence that new requirements would kill live services. They would certainly patch the infinite money glitch and that would lead to some projects to not be greenlit. Much like pornography, it wouldn't disappear, but be regulated so as not to become the sole medium and elbow others, just because of the raw appeal. There can, however, be a comprehensive survey and data that would indicate whether live services are worth preserving. I wonder why nobody's gathered the data that is clearly available.

The fact that there are many thieves in a township should not have any bearing on whether or not theft is considered a crime. Yet for some reason, many discussions around this topic veer into a discussion of the number of thieves, and the benefit that they bring by spending stolen money at the very shops that they stole from.

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Now unfortunately, I must state that this is not an isolated problem. The public itself is acting against its own interest on questions of right to repair, code sovereignty, generative AI and climate change. The problem isn't that the corporations are too powerful and they lobby too hard in the legislative bodies. The problem is that the day-to-day decision making of almost everyone who recognises this as a problem is just as compromised, without any one of those people being aware.

Specifically, I have on multiple occasions entertained not repairing but replacing my personal electronics. This is the exact opposite of what I should be doing, but the new shiny has marginally better specifications, repair centres are few and far between, and do not, as a rule guarantee that they can even repair it. It's not their fault, and as far as I can understand this is systemic warfare from the manufacturers. When I had a laptop with tea spilled all over it, I knew for a fact that it is possible to restore that machine with an ultrasonic bath; far from a guarantee, but much better than nothing. I did not find a repairman, I instead looked for a way to make use of insurance in student accommodation and replace the computer. That's not at all friendly to right to repair, and that is exactly what the manufacturer wanted (apple, if you're wondering).

I'm quite convinced that there are similar anecdotes about plastic. We are told "there's nothing that you can do, because all of what we do results in climate change, even breathing". You are told that walking to work has a net carbon emission. That's why you give up and accept individually wrapped tea bags as a common occurrence. That's why instead of improved public transport infrastructure, we all collectively give up and accept cars. The alternatives suck and don't give you an illusion of choice. The path they want you to take sucks slightly less and gives you an impression of choice. Much of the discourse is so in-grained, that people espousing irredeemably stupid opinions are not immediately dismissed in any form of discourse.

We have opinions that are accepted as fact based on authority. Lesser minds have dubbed this the Cartesian crisis, but I much prefer calling this by its proper first written instantiation: Plato's cave. For this to be a Cartesian crisis, one would need empirical evidence to dismiss a false claim. That is certainly true of some of the problems that I have listed before. But the aforementioned lesser minds ascribe simultaneously too little and too much agency to the philosopher (you in this case): you must re-examine the very bases of your existence. You have correct shapes and outlines, and some heuristics that cannot be entirely wrong. Yet you lack definition, colour, texture, some rules are a consequence of specific circumstances that shall not be replicated. The problems appear similar, but there is a difference between a fundamental problem of Gnoseology, and a regular abuse by a single entity with a conflict of interest.

This problem lies at the heart of all institutional issues. It is a decided shortfall between the proclaimed efficacy and standards of an institution and the actual quality of the output. A semblance of it is heard in the "good old days" arguments of the older generation. But there are both more serious and more obvious issues that must be addressed.

On the obvious side there is infantile disilussionment in institutions whose goals had been romanticised away from their original intention. Universities and schoools are not meant to provide useful skills, though they may do so as a side effect. They engender conformity, which in and of itself is a useful skill, much more so for the society than the individual, but undoubtedly a tool that can be used for good. This is not too dissimilar to the training and discipline that is engendered in the army/navy/air-force boot-camp. The idea is not and never was to make free thinkers, but rather to acquaint free thinkers with doers, and to temper their freedom, such that it does not lead to disaster. Realising this is a bitter pill to swallow for most graduates. The unfortunate consequence is that this is often conflated with the very real problem of that higher academia is indeed broken, not because it no longer "creates" new free thinkers and geniuses, but rather because it fails to provide them with the requisite nurturing, and usually points them towards a more destructive path.

Academia is an excellent example, both because I have personally a great deal of experience and a large toolkit of horror stories, but also because it is an important cornerstone of our society both at large and to each person individually.