You Mess With the Bull, You Get the Horns

2 Years ago, Hasbro/Wizards of the Coast laid off about 20% of their staff.

Now they are begging their employees not to unionize.

Wizards of the Coast, the company that makes Magic: The Gathering and Dungeons & Dragons, has a problem—no, not its cancelled video games. Its workers would like to unionise, and I'm just starting to get the sense that it really doesn't want that to happen. Just a smidge. A tiny inkling.

Late last month, WoTC employees from the Magic: The Gathering Arena team announced their intention to form a union, giving the company until May 1 to recognise it voluntarily. Neither Hasbro nor Wizards of the Coast did so.

The motion to form a union now proceeds to a vote via the National Labor Relations Board, which would allow the union to form whether Hasbro/WoTC like it or not. In order to dissuade the union from forming, Wizards of the Coast has, workers claim, resorted to daily emails and scare tactics.

They have hired union busters as well, Fisher Phillips, and are almost certainly targeting labor organizers among their employees.

As an FYI, it doesn't help that the layoffs were largely indiscriminate, hitting some of WOTC's most successful projects. 

Headline of the Day

Why Elon Musk Needs Dungeons & Dragons to Be Racist

—The Atlantic on why Elon Musk completely lost his sh%$ on the current owner of D&D releasing a book that admitted that the early stuff was just a bit racist.

Elon Musk does not object to being called a racist, he objects to people being offended by racism.

The fall of Constantinople wiped the last living Roman civilization from the Earth. The city’s refugees fled west, helping spark the Renaissance; its legacy shaped the religious traditions of millions and the modern map of Europe and the Middle East. The fall also inspired a book, which inspired a game, which inspired the world’s richest man to lash out because his favorite role-playing game wasn’t as racist and sexist as it used to be.

Last November, on X, the billionaire tycoon Elon Musk told the toy company Hasbro to “burn in hell.” Hasbro owns the company Wizards of the Coast, which produces the game Dungeons & Dragons. Wizards had just released a book on the making of the game that was critical of some of its creators’ old material. “Nobody, and I mean nobody, gets to trash” the “geniuses who created Dungeons & Dragons,” Musk wrote. The book acknowledged that some earlier iterations of the game relied on racist and sexist stereotypes and included “a virtual catalog of insensitive and derogatory language.” After a designer at Wizards said that the company’s priority now was responding to “progressives and underrepresented groups who justly took offense” at those stereotypes, and not to “the ire of the grognards”—a reference to early fans such as Musk—Musk asked, “How much is Hasbro?,” suggesting that he might buy the company to impose his vision on it, as he’d done with Twitter.

………

D&D wouldn’t exist without J. R. R. Tolkien’s The Hobbit, fantasy’s seminal 20th-century text, published in 1937. When Tolkien’s German publisher, to comply with Nazi racial laws, tried to determine whether the author was Jewish, Tolkien was outraged. A draft of his response reads: “If I am to understand that you are enquiring whether I am of Jewish origin, I can only reply that I regret that I appear to have no ancestors of that gifted people.” He expressed his disgust to his British publisher: “I have many Jewish friends, and should regret giving any colour to the notion that I subscribed to the wholly pernicious and unscientific race-doctrine.”

Unfortunately, a “pernicious and unscientific race-doctrine” permeated the era in which The Hobbit, and the Lord of the Rings series that followed it, were written, an era in which many Westerners believed that “races” shared particular natures, characteristics, and capabilities. That genetic determinism seeped into the books. Although uncountable readers were inspired by the tales of its diminutive heroes defying stereotypes to save the world, some drew other conclusions. The books, and the ideas embedded in them, would go on to have a magnetic appeal to the political forces Tolkien had rejected.

Today, we can see their influence on right-wing populists in business and politics all over the world.The billionaire Peter Thiel named his software company, Palantir, after the crystal ball in The Lord of the Rings, while his AI company, Anduril, is named for the sword of the human hero Aragorn. Joe Lonsdale, an investor in Anduril and Palantir, founded a crypto-focused bank called Erebor, after the dwarfs’ mountain fortress. Vice President J. D. Vance named his venture-capital firm Narya, after Gandalf’s magic ring. Giorgia Meloni, the far-right prime minister of Italy, and defender of “Italianity” against what she sees as the dilution of immigration, is a Tolkien obsessive who sees in hobbits, dwarfs, and elves the “value of specificity.” When Peter Jackson’s Oscar-winning adaptation of the Lord of the Rings trilogy came out in the 2000s, conservative writers embraced the films as a metaphor for George W. Bush’s war in Iraq.

………

If your identity was built around being a fan of a marginal pastime, de-geekification meant that suddenly, you weren’t as special anymore. Comic books, video games, fantasy and science fiction, role-playing games such as Dungeons & Dragons—they were all getting more popular, and trying to appeal to new audiences. Not everyone was happy with the changes that effort inspired.

Those who objected could be divided into two categories: people who found the simpler and more flexible game to be bland; and people who didn’t like the game getting “woke.” This is a slippery term, but it often boils down to things not being quite as racist or sexist as they used to be.

Racists don''t just want to be racism to be accepted, they demand that society continues to promulgate racism.

For All You Writers/Gamers Out There, Fake Religion Advice

Dr. Andrew Henry, is a scholar of religious studies, and he put out a very good video about how religions in fantasy world get stuff wrong. 

I find it fascinating.

It doesn't matter if you have mythical creatures dragons, unicorns, sentient luggage, or ethical politicians, people are still people, and religion needs to provide for the same needs in a fantasy as they do in the real world.

Headline of the Day

Apple F$@ks Around with Court Order, Finds Out

Matt Stoller

It appears that the judge dealing with the Apple v. Epic antitrust lawsuit has had enough of Apple, Inc. simply ignoring the judges orders:

Late last month, Judge Yvonne Gonzalez Rogers issued a stinging order against Apple as part of the longstanding antitrust battle between Epic Games and the phone giant.

The case was started in 2020 when Epic Games changed its popular Fortnite game app on the iPhone to allow “players to bypass Apple’s payment system for in-game purchases, and use a proprietary Epic payment option instead.” Apple in turn kicked Fortnite out of the app store, citing the breach of its app store rules. Epic Games then sued Apple for monopolization, with a slick marketing video ready to go decrying the tyranny of the phone giant.

………

Apple complied in a manner that can only be described as bad faith, which led to another series of hearings and last month’s judicial rebuke. In it, Judge Gonzalez Rogers mandated that the firm freely open up its app store to app developers who want to link out to their own payment system, and made a criminal referral of Apple Vice-President of Finance, Alex Roman, accusing him of having “outright lied under oath.”

(emphasis mine)

………

She also ordered Apple to comply immediately, which opens up the app ecosystem for new products. A host of developers updated their apps, and Apple quickly approved them. It also appealed the decision to the Ninth Circuit, and asked for the higher court to issue a ‘stay,’ or halt, to the order, while it hears the appeal.

As with many other developers, Epic Games submitted a new version of Fortnite to Apple. But unlike the quick approval granted to most, Epic Games waited for five days, and then was told that it simply could not get the app onto the app store until the end of litigation. In other words, Apple said it simply would not adhere to a court order. Epic Games in turn filed yet another complaint to the judge.

At this point, it’s fair to say Judge Gonzalez Rogers has lost patience. Yesterday, she issued an order demanding Apple explain at a briefing next Tuesday “the legal authority upon which Apple contends that it can ignore this Court’s order.” Furthermore, she mandated that “the Apple official who is personally responsible for ensuring compliance shall personally appear at the hearing.” In other words, an Apple executive should prepare for sanctions if Fortnite doesn’t get into the app store, and soon.

I think that this summarizes what is going on with this judge

………

The irony here is that Gonzalez Rogers has really bent over backwards for Apple, ruling against Epic Games on every Federal antitrust charge, and leaving open a host of ways for Apple to mitigate harm from the one state trade law she ruled Apple violated. I watched the whole process carefully, it took endless amounts of annoying bad faith nonsense from Apple to change this judge’s approach. Finally, she came to realize that Tim Cook and Apple was not running a large corporation that got a bit too aggressive, but a lawless bad faith legal operation willing to lie in court.

Yeah, pretty much.

BTW, this is an Epic ⃰ troll of Apple  with regard to Fortnite:
^*Pun intended.

Headline of the Day (Schadenfreude Alert!)

Elon Musk Rage Quits Livestream After Being Cyberbullied by Gamers in The Chat

—The Daily Beast

1h44m of a lame-ass gamer getting roasted in a live stream. Sweet. So, Apartheid Era Emerald Heir Pedo Guy™ wanted to demonstrate the performance of Starlink™ based wifi by live streaming his playing  Path of Exile 2 at the hardest level.

First, he wasn't any good at it, and second, he got roasted by the live stream participants.

Elon Musk rage quit a livestream of the video game Path of Exile 2 on Saturday night after repeatedly dying while also being ruthlessly cyberbullied in the chat.

Path of Exile 2 is one of Musk’s favorite games—so much so that he once claimed to be one of the world’s top players in an attempt to boost his gamer cred, before later backtracking and admitting that he had been secretly paying people to level up his account to make him appear more talented at it than he was.

Nevertheless, while attempting to show off Starlink’s in-flight WiFi capabilities while onboard his private jet over the weekend, Musk streamed himself playing some PoE2 on the hardest difficulty, which was broadcast live on X.

The DOGE chief was, predictably, terrible at the game, but that was the least of his problems—Less than five minutes into the stream, a player logged on and asked Musk if he could “please jerk off mr trump so he dies of a heart attack.” It only got worse from there.

For the next hour and a half, Musk sat in stony-faced silence and blasted techno music while dozens of users with names such as ELON_IS_A_PEEDOPHILE and ELON_MUSK_IS_PATHETIC repeatedly spammed the chat to tell him “YOU HAVE NO FRIENDS AND YOU WILL DIE ALONE” and “YOU WILL ALWAYS FEEL INSECURE AND IT WILL NEVER GO AWAY.”

………

Eventually, he vanished when his WiFi connection abruptly cut out and ended the stream, which he later deleted from X but was swiftly reuploaded onto YouTube.

Needless to say, massive levels of schadenfreude here.

Elon Musk is now a subject of (very well deserved) derision. 

To quote Ben Franklin Abraham Lincoln Mark Twain Maurice Switzer, "Better to remain silent and be thought a fool than to speak and to remove all doubt."

This Sh%$ is Just So Overwhelming

It instills in me a kind of writer's paralysis. which is why I have been posting so little lately.

President Musk and Donald Trump are f%$#ing exhausting. 

I'm left staring at the screen and growing virtual potatoes on Mars instead of writing.

From the Department of Too Much Free Time

Someone has created a version of the seminal video game Doom that is contained in a PDF file.

It's monochrome, but apparently, it works.

Still, why? 

There is a race to see who can bend the PDF file format to do the most impressive thing. Considering the more-than-30-year-old shooter, Doom, has been ported to many unexpected places, it was inevitable it would turn up in a PDF file.

The Portable Document Format (PDF) was developed to present documents in a manner that was independent of the software, hardware, and operating system showing them. It's an undoubtedly neat system, but malware authors have been known to exploit its complexity.

However, what for one person is an opportunity for mischief is for another a demonstration of programming prowess, which brings us to DoomPDF, a port of the classic first-person-shooter that will run from a PDF, assuming the PDF engine used to display the document at least partially supports PDF file format's implementation of Javascript.

The Reg ran the PDF in a Chromium browser and, purely in the interest of research, spent perhaps more time than we should making sure the monochrome rendering of '90s mayhem worked as we remembered.

 This appears to be done with overgrown dynamic ASCII art.

But again, why?

Too Much Free Time

I'm OK with people doing DOOM mods, the Vuvuzela mod is prize, but creating a CAPTCHA which requires you to play Doom on Nightmare difficulty is a bridge too far:

People have been complaining for a while that passing a CAPTCHA is too difficult, but developer and tech CEO Guillermo Rauch has made one of the hardest yet: a fully playable CAPTCHA based on the classic PC game Doom.

It's been a long-running joke that developers will make Doom run on absolutely anything, so it's not much of a surprise that it's now running inside something that resembles a CAPTCHA.

The app essentially amounts to a small Doom level that is playable with keyboard controls (arrow keys to move, space bar to shoot) within a CAPTCHA-like presentation. You must kill three enemies to pass the test.

The level reflects Doom's Nightmare difficulty, and it is much harder than needed to be an effective CAPTCHA—especially since you can't strafe to avoid enemy fire. It took me several tries to cheese a victory, and the Hacker News thread about this app is filled with people noting how difficult it is and sharing strategies.

I have a grudging admiration of this, but imagine if the effort was applied to something like remediating anthropogenic climate change.

It Appears That the Stereotypes Are True

 A study had determined both for children and adults, (More for adults and children) less attractive people spend more time playing video games:

We investigate the relationship between physical attractiveness and the time people devote to video/computer gaming. Average American teenagers spend 2.6% of their waking hours gaming, while for adults this figure is 2.7%. Using the American Add Health Study, we show that adults who are better-looking have more close friends. Arguably, gaming is costlier for them, and they thus engage in less of it. Physically attractive teens are less likely to engage in gaming at all, whereas unattractive teens who do game spend more time each week on it than other gamers. Attractive adults are also less likely than others to spend any time gaming; and if they do, they spend less time on it than less attractive adults. Using the longitudinal nature of the Add Health Study, we find supportive evidence that these relationships are causal for adults: good looks decrease gaming time, not vice-versa. 

There is a PDF of the full study at the link, but their thesis is that attractive people spend more time socializing face to face.

Hoocodanode?

Interesting Point

Crashing a CNET event


This one is real life with penis drones crashing a Gary Kasperov speech.One of the arguments made by cryptocurrency enthusiasts is that it is currency.

The thing is, it does not fit the most basic definition of currency, because it is not current.

If you want to buy something with Bitcoin, it takes hours, or days, or fees far higher than what it would cost to wire money to Guatemala.

In fact, Bitcoin is used less often to buy stuff, as opposed to things like paying a ransom, less than are Linden dollars.

I know what you are thinking, "What the f%$# are Linden dollars?"

They are the currency used in Second Life, an online game in which one participates in a virtual world.

You may not remember it, it began in 2003, and passed its zenith sometime around 2006, when corporate virtual events were ravaged by flying penises.  (As Anna Russel would say, "I'm not making this up, you know.")

I know what you are thinking now, "Oh, yes it it is still around."

No disrespect to people who are still participate in the environment, not that there's anything wrong with that, but the fact that there is still more commerce generated from a 2 decade old game than is generated by Bitcoin says something about how profoundly ill suited to, well, anything, Bitcoin is:

At a recent high tech conference (I forget which one, so let's just say SXSW), the topic of Bitcoin came up, with a very young developer enthusing to me how it was going to be The Next Big thing. I pointed out (as I often do) that Bitcoin still lacks the key thing a currency needs to be a currency -- that is to say, a mass group of people regularly using it to buy, you know, stuff.

But my new friend stood his ground. "Transactions have been growing like crazy since last year," he insisted, "they're over 100,000 a day now." I checked Bitcoin's daily transaction info, and that's indeed the case: Over 100K transactions a day, almost double what it was in the Summer of last year. Which is definitely solid growth of some kind, I'll give him that. 

But here's the thing, and it bears emphasis: At 100K transactions a day, Bitcoin is still less used than Linden Dollars.

 (emphasis original)

………

This isn't to say Linden Dollars are superior to Bitcoin -- which after all, are a virtual currency intrinsically tied to a social game MMO platform. However, after all that hype, you'd think Silicon Valley would be quick to have the same skepticism for Bitcoin as they did for Second Life after it failed to deliver on its promises in 2006-2008.

Indeed, but there is an important difference, the people running and participating in Second Life are not in this to scam people, while the people supporting Bitcoin, most notably Marc Andreessen and Ben Horowitz, are actively scamming people.

The big money and hype is in cryptocurrency is from investors who are pumping and dumping in the hope that the retail investors will make them profits, and take their losses.

How Are They Still in Business?

If you hear that a game publisher is doing something and user hostile, what name comes to mind?

For me, it's Sony, between their inflicting rootkits on users, massive data breaches, price fixing, shutting down libraries which were promised to be eternal, lame proprietary technologies, etc.

The latest case is the Steam game Helldivers 2, which stunned many people, including Sony executives when it became a breakout hit.

So, Sony decided to require players to join the players to join the Play Station Network so that they can upsell all their new customers.

Well, in response to massive player outrage, Sony has reversed this decision.

Helldivers 2 PC players can continue doing their part for Super Earth, sans Sony logins.

Sony's plan for its surprise hit co-op squad shooter—now the most successful launch in Sony's nascent PC catalog—Helldivers 2, was to make its players sign in with PlayStation Network (PSN) accounts before it launched in early February, even if they purchased the game through the Steam store.

Sony and developer Arrowhead didn't enforce PSN logins during its frenetic launch and then announced late last week that PSN accounts would soon be mandatory. Many players did not like that at all, seeing in it a sudden desire by Sony to capitalize on its unexpected smash hit. Some were not eager to engage with a network that had a notable hack in its history, others were concerned about countries where PSN was not offered, and many didn't take Sony at its word that this was about griefing, banning, and other moderation. Because of the uneven availability of Steam and PSN, Helldivers 2 was delisted in 177 countries on Steam over the weekend as Steam worked through refund requests.

The pushback made an impression, and now Sony has announced that account linking "will not be moving forward." In a post on X (formerly Twitter) Sunday night addressed to Helldivers fans, the official PlayStation account wrote that the publisher had "heard your feedback" and was "still learning what is best for PC players and your feedback has been invaluable."

Translation:  We tried to f%$# our users, and the users f%$#ed us back harder.

This seems to happen fairly frequently with Sony.

The First Rule of Dungeons and Dragons

Is....

Don't ever think

That you can outsmart

The DM ………

Ever!

In Other Antitrust News

The Supreme Court has refused to hear the appeal for Epic v. Apple, meaning that the latter's anti-steering provision on its app store are unenforceable.

So developers can now offer payment systems outside of Apple's walled garden, which, hopefully, will in the longer term disincentivize Apple and toll collectors in the app store system to be a bit less larcenous:

The Supreme Court declined to hear either of the petitions resulting from the multi-year, multi-court Epic v. Apple antitrust dispute. That leaves most of Epic's complaints about Apple's practices unanswered, but the gaming company achieved one victory on pricing notices.

………

The matter reached trial in May 2021. The precise definitions of "games" and "marketplace" were fervently debated. Epic scored a seemingly huge victory in September 2021 when a Northern California judge demanded that Apple allow developers to offer their own payment buttons and communicate with app customers about alternate payment options. An appeals court upheld that Apple's App Store itself wasn't a "walled garden" that violated antitrust laws but kept the ruling that Apple had to open up its payments and messaging.

Today's denial of petitions for certiorari means that Apple has mostly run out of legal options to prevent changes to its App Store policies now that multiple courts have found its "anti-steering" language anticompetitive. Links and messaging from developers should soon be able to send users to alternative payment options for apps rather than forcing them to stay entirely inside Apple's App Store, resulting in a notable commission for Apple.

The role that naked rent-seeking currently plays in our economy is the source of much of the inequality in our society.

It is excessive and wrong.

A Much Deserved Defenestration

I don't do much covering of computer gaming because I don't do serious computer gaming. 

That being said, the self-immolation of Unity, the cross platform game tools developer does catch one's attention.

Short version, they sold their tools royalty free, then they reversed themselves and came up with terms of service that would have bankrupted a number of game publishers.

They have partially reversed themselves, but the damage has been done, and any goodwill that they had was gone, and people have continued to move frantically to things like Godot,  Unreal, etc.

Now they have pushed their CEO John Riccitiello, the architect of their disastrous decision, but I think that the problem is more than just him.  

They had to know what they would get when they hired a former CEO for Electronic Arts.

Short sighted stupid greedy bastards is kind of a signature characteristic of managers at most levels of EA:

John Riccitiello, the chief executive of Unity Technologies, abruptly stepped down on Monday, less than a month after a change to the company’s pricing structure infuriated thousands of software developers who rely on the video game company’s tools.

Unity, which makes the underlying software that powers video games, has long imposed an annual licensing fee on developers. But in September, the company said it would begin charging developers additional money each time someone downloaded one of their video games. That meant developers would pay more as their games increased in popularity. Mr. Riccitiello was one of the main proponents of the change.

………

Unity did not give a reason for Mr. Riccitiello’s departure after nine years at the company. He was also the company’s president and the chairman of its board of directors. Unity did not respond to a request for comment and Mr. Riccitiello could not be immediately reached for comment.

His swift exit underscored the precarious position Mr. Riccitiello found himself in after an attempt to fix a corporate balance sheet awash in red ink. But the abrupt shift in the company’s financial model angered many programmers who rely on Unity for their own businesses.

………

Mr. Riccitiello is no stranger to controversy. He spent nearly two decades at the video game giant Electronic Arts, including a stint as chief executive, and gained a reputation for trying to squeeze money out of games in ways that sometimes frustrated players.

He once floated the idea to stockholders that players might be willing to pay a dollar every time they needed to reload their virtual guns while playing Battlefield, a popular first-person shooter game. In 2013, Mr. Riccitiello left E.A., apologizing for the company’s poor financial performance.

This guy should not be closer to managing a gaming related company than assistant manager at a Chuck E. Cheese, and the management at Unity had to have known this when they hired him. 

The damage has clearly been done, the only question is whether Unity will continue as a much diminished company, or simply end up a greasy stain on the floor of some sort of merger deal.

My money is on the latter.

Corrupt Much? Antitrust, not Supreme Court Edition

So, Federal Judge Jacqueline Scott Corley (A Biden appointee, ICYMI) just just ruled against the FTC's request for an injunction against the Microsoft—Activision deal, even though her son works for Microsoft.

In December 2022, the Federal Trade Commission sued to block Microsoft’s $68.7 billion acquisition of Activision-Blizzard, a merger that would combine two of the largest game developers in the world. Activision — thanks to a merger with Blizzard in 2008 — publishes some of the world’s most popular AAA game titles. Already, Microsoft is the third largest game developer globally, owning around 30 gaming studios and the Xbox gaming platform.

Today, Judge Jacqueline Scott Corley of the Northern District Court of California denied the Federal Trade Commission’s request for a preliminary injunction, which would have halted the deal until the FTC could review it in full later this year. Here’s why the judge’s opinion is flawed, and why the FTC was right to block this merger and should continue its administrative case against Microsoft’s ambitions to monopolize the future of gaming.

(Emphasis Original)

Yeah, the ruling is basically, "Microsoft double pinkie sweared it would be good."  It sucked.

………

Judge Corley ignores this salient evidence and makes the following errors:

• Judge Corley deviates from the text of the Clayton Act and decades of controlling precedent prohibiting mergers that “may substantially lessen competition” – instead adopting a “will probably substantially lessen competition” standard that is a higher bar than the statute allows.
• Judge Corley dismisses extensive evidence proffered by the FTC that, even absent exclusivity, Microsoft has a clear incentive to “partially foreclose” access on competing consoles, including by degrading game functionality.
• Judge Corley dismisses ample evidence that Microsoft has acquired game developers in the past only to quickly convert their games to exclusive Xbox content.
• The FTC introduced bombshell evidence including emails from top Microsoft executives explicitly detailing their monopoly ambitions and intent to “spend Sony out of existence” – and Judge Corley completely ignores it.
• Judge Corley misunderstands the nature of vertical mergers on content platforms, refusing to engage with ample evidence and academic research that differentiated content is not replaceable – and that anticompetitive effects are more pronounced.
• Judge Corley improperly places the burden on the FTC of demonstrating the adequacy of Microsoft’s behavioral remedies (e.g., side agreements with other consoles) in its initial prima facie
• Judge Corley finds that it does not make financial sense for Microsoft to pull Call of Duty from competing consoles, ignoring that Microsoft can afford to take short-term positions that advance their longer-term monopoly ambitions.
• Judge Corley improperly narrows the FTC’s complaint to concerns about Call of Duty, even though the FTC’s complaint includes other Activision-Blizzard AAA games like Diablo and Overwatch. In doing so, she also rubber stamps Microsoft’s side agreements with other consoles as to Call of Duty only, with no analysis of the anticompetitive harm posed by foreclosure to Activision-Blizzard’s many other offerings.

And about her kid, The Revolving Door Project, has written a letter which notes that Microsoft is in the middle of mass layoffs, so even if the kid does not work in gaming, it clearly produces a situation, "In which the judge’s impartiality might reasonably be questioned," and , "This relationship may violate Canons 2 and 3 of the Code of Conduct for US Judges."

I strongly recommend Matt Stoller's piece, which goes into the legal fictions to which much of the federal judiciary subscribes to.

As opposed to the first analysis, this one goes back to first principles, which is something that I favor:

Today’s piece is about a judge’s decision to rule against the Federal Trade Commission and let the biggest tech merger of all time proceed. 

………

This administration has enacted many important policies to promote fair competition. I was just in Best Buy a few days ago, and saw cheap hearing aids on sale over the counter, which is something the White House fostered. But one disastrous area is the administration’s choices on judges, which are picked from the rarefied legal elite world and filled with corporate lawyers. Twenty percent of Biden’s judicial picks to the circuit court come from two firms - Skadden Arps and Wilson Sonsini - both of which are Google’s law firms. At this point, many non-corporate judges, steeped in that social world, are disdainful of government attempts to thwart consolidation, seeing expert bodies charged with upholding the public interest as obnoxious and meddling.

We can see this dynamic quite clearly today because Judge Jacqueline Scott Corley, a recent Biden appointee, authored a decision denying the Federal Trade Commission’s case to block the $69 billion merger between Microsoft and Activision. For the last five years, there’s been substantial policy discourse around the problem of corporate power, especially in tech markets. But what is increasingly clear is that this policy discourse simply isn’t penetrating the judiciary. Corley’s decision is quite a stunner, and I very much hope the Federal Trade Commission appeals, not just to save the video game industry, but because Corley is actually helping to shape the law in very dangerous ways. 

………

To understand why this case should be appealed, however, it’s important to focus on her interpretation of the Clayton Act, the anti-merger law which states mergers that “may substantially lessen competition or to tend to create a monopoly” are unlawful. This sentence has some looseness to it, but Congress was very clear in 1950 when it last updated the law. “The purpose of the proposed bill, H. R. 2734, is to limit future increases in the level of economic concentration resulting from corporate mergers and acquisitions,” said the Senate Judiciary report on the bill. On those very grounds, a $69 billion takeover of Activision by the second largest corporation in the world, Microsoft, should be presumptively unlawful. So how did a judge get to a place where the deal became legal?

………

Yet, here’s the judge’s summary of the FTC’s argument: “The gist of the FTC’s complaint… is that Microsoft is probably going to foreclose [Call of Duty] from its rivals for its own economic benefit to consumers’ detriment.” So the judge decided that the largest tech merger of all time would hinge on whether the FTC could prove that Microsoft would pull one video game from the Sony Playstation.

After narrowing the stakes, the judge then rewrote the law. She did this in two ways. The first is obvious, in that she simply redid the statutory text. The Clayton Act reads that mergers that “may substantially lessen competition” are unlawful. Judge Corley re-wrote this as, “the FTC must show the merger will probably substantially lessen competition.” It’s nice she was this blatant about rewriting statute, because it makes an appeal much cleaner. (I bolded the words to show the change.)

The second is less obvious. Judge Corley did what Bork sought, which is to turn the Clayton Act into purely a pure question of economics. “The core question in antitrust is output,” she wrote, rejecting how Congress originally saw the law, as a restraint on corporate power. To Corley, Congress, rather than singling out big mergers as a policy problem, wrote the law to encourage big mergers, especially when a large firm is subsidizing the consumer experience temporarily so as to capture market power on the backend. “The merger,” she wrote, “has the pro-competitive effect of expanding access to Call of Duty” because it will give “consumers a new, lower cost way to play the game.” Mergers, in other words, are good. Robert Bork couldn’t have done a better job in representing his philosophy. But it’s a flat-out contradiction of the statutory text.

………

I have watched a bunch of antitrust trials, and while there are often bad decisions, I am rarely offended by the attitude of a judge. But in this case, I actually was. Corley, aside from being totally unconcerned with her son’s financial interest in Microsoft, simply didn’t take video gaming seriously. “‘All of this is for a shooter videogame,” she commented in the midst of the trial. She also wondered why anyone would need a video game console, considering, and I’m not kidding, that during the pandemic "everyone did their work from home" and "nobody did it on a bargain basement PC." Talk about out of touch! (If you want another good analysis, antitrust lawyer Lee Hepner tweeted out an excellent list of legal and factual problems with the judge’s decision, and put out a short document on the matter as well.)

So the decision is not only morally bankrupt, but it appears to be legally bankrupt as well.

Some Good News from the UK

No, King Charles has not abolished the monarchy, but the UK Competition and Markets Authority has blocked Microsoft's merger with Activision Blizzard.

Given Microsoft's current position, it is a major console manufacturer, Windows is a major gaming platform, it's a major player in cloud computing, and it dominates cloud gaming, it's buying up the publisher of Call of Duty, Tony Hawk, Warcraft, Candy Crush, and Guitar Hero creates significant competion issues.

The FTC is suing to prevent the merger as well:

Today I’m writing about the UK’s Competition and Markets Authority’s move to block Microsoft’s takeover of Activision in a $69 billion deal. It’s hard to overstate the importance of this challenge, and I’m going to focus on the logic of the CMA, and what it means for the development of technology going forward.

Here’s what happened. Microsoft was trying to buy Activision to expand its gaming portfolio, which it had rolled up with a series of acquisitions. Activision would have been its largest purchase to date. What was the rationale for the acquisition? As I wrote when the deal was announced:

Activision has important gaming franchises, like Call of Duty, Candy Crush, Warcraft and Tony Hawk. With this purchase, Microsoft will be the third biggest gaming firm in the world, controlling the X-Box console platform and a lot of game development and intellectual property (as well as Activision’s in-game advertising business line). The key strategic rationale behind this deal is to build up a walled garden for Microsoft’s gaming division, which runs a Netflix-style subscription service called Game Pass.

Last year, the Federal Trade Commission sued to block the deal, arguing that Microsoft would foreclose its games to its rival in game platforms, Sony.

“Microsoft has already shown that it can and will withhold content from its gaming rivals,” said Holly Vedova, Director of the FTC’s Bureau of Competition. “Today we seek to stop Microsoft from gaining control over a leading independent game studio and using it to harm competition in multiple dynamic and fast-growing gaming markets.”

The idea was that Microsoft would make games exclusive to its own platforms, in order to block rivals from ‘must-have’ content in the gaming industry. A lot of people didn’t understand why Microsoft’s deal was so dangerous, because Sony is both bigger in the gaming space, and has a lot more game exclusives.

………

This dynamic is very clear when examining how the CMA thought about its challenge. Originally, in its statement of objections, the CMA claimed that Microsoft could gain market power in both consoles and cloud computing. But then in March, it dropped its claims about consoles, effectively brushing aside Sony’s worries. A lot of observers thought Microsoft would then be able to get its deal approved, assuming the logic for gaming on cloud computing is similar to that of consoles.

………

While this may sound like a compelling rationale, the CMA was unpersuaded, noting that “there seem to be other, less anti-competitive ways, through which Microsoft could reasonably attempt to enter this market, such as by licensing mobile gaming content from publishers.” Basically, you don’t have to own games to sell them through an app store, unless you are trying to monopolize a vertically integrated sector.

So what happens now? Well, Microsoft can appeal, and Brad Smith says they are planning to do so. Appeals are tough in the UK. And Activision must agree to that, since an appeal will take the merger past the merger agreement due date. Moreover, Activision has a $3 billion break-up fee, and has already been planning a strategy based on the assumption the deal won’t go through. So we’ll see. Meanwhile, the FTC is still gearing up for trial in the U.S., and this move helps American enforcers in their arguments here.

Your mouth to God's ear, Mr. Stoller. 

We desperately need aggressive anti-trust enforcement, including criminal penalties against executives who do this.

Dungeons and Dragons Rat Fuckery

There has been an explosion of outrage over Wizards of the Coast LLC, a subsidiary of Hasbro, Inc. changing their "Open Gaming License", which will have the effect of making their license.

Well, writing from his hot air balloon secret base, (Way cooler than S.H.I.E.L.D.'s helicarrier) Cory Doctorow observes something very interesting, that the license that they have issued is complete garbage in either the old or the new version, because it licenses things that are not subject to copyright.

While Wizards of the Coast LLC, a subsidiary of Hasbro, Inc. can apply IP to things like the actual words used to write the rules, characters, names, places, etc, they cannot actually copyright the meaning of the rules.

Copyright covers expression, not ideas: (Some slight reformatting for prettier links)

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:

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.

………

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.

FWIW, as Doctorow notes, this sort of rug pull is actually rather common.  For profits go from, "We encourage the community to create content," to, "Fuck you, pay me," as soon as they feel that they no longer need to that community's content.

Here is the important bit:

………

The perpetual/irrevocable switcheroo is the least of the problems with the OGL. As gsllc@chirp.enworld.org – 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.

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?)

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.

………

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.

Things like specific characters, maps, dialogue, etc. are subject to copyright, but if you want to create a new character class, say for example a boomerang spoon thrower, you can do using dice, and levels, and experience point requirements for levels, etc. without permission, and you can sell it.

You could also create an app to calculate character stats and otherwise aid in game play, because the fact that hit points for a fighter use a D10 (in my day, they only got a D8, and we liked it, you kids) is not copyrightable.

The original (allegedly good) OGL never gave its users any rights, it took them away, albeit for free, and there is no reason for anyone to continue to use this license.

Just write and release your works, and maybe form a coop to deal with the nuisance suits that might come your way from Wizards of the Coast LLC, a subsidiary of Hasbro, Inc.

I Want to Go to Glasgow

Where police were called in to break up a 3000 person game of hide and seek at Ikea.

This is a group of people who know how to party:

Police were called to the Glasgow branch of the Swedish furniture giant on Saturday after thousands of people threatened to turn up for a mass game of hide and seek.


Plans were announced on Facebook to turn the store at the Braehead shopping complex into an impromptu playground.


The trend for using Ikea’s giant warehouses for games began in Europe a few years ago - and has seen people hiding in fridges, under beds and in the firm’s big blue shopping bags.



At some point on Saturday, staff at Braehead became aware of a Facebook thread suggesting some 3,000 youths were about to descend on the store.


As well as drafting in extra security, Ikea contacted Police Scotland, who dispatched five officers.



………

The trend for using Ikea for hide and seek started in Belgium in 2014 and spread rapidly around Europe, with Ikea bosses initially allowing the events.




In Holland an astonishing 32,000 Facebook users signed up for a game in Eindhoven, as well as 19,000 in Amsterdam and 12,000 in Utrecht.



However in 2015, IKEA was forced to impose a ban because the events were getting out of control.



Citing health and safety a spokesman explained: ‘We need to make sure people are safe, and that’s hard if we don’t know where they are.’



Beats Swedish Meatballs.

Thank You Lina Khan

As I have mentioned before,  the stridently anti-monopoly head of the Federal Trade Commission has been aggressive in pursuing her agenda.

Now, the FTC has filed suite to block Microsoft's acquisition of Activision.

The Federal Trade Commission, in one of the most aggressive actions taken by federal regulators in decades to check the power of the tech industry’s giants, on Thursday sued to block Microsoft’s $69 billion acquisition of the video game maker Activision Blizzard.

The F.T.C. said that the deal would harm consumers because Microsoft could use Activision’s blockbuster games like Call of Duty to lure gamers from rivals. The agency’s commissioners voted 3to 1 to approve filing the suit.

The decision is a blow to the expansion of Microsoft’s video game business, which has become its most important consumer unit and topped $16 billion in annual sales during the most recent fiscal year. For the F.T.C. chair, Lina Khan, a legal scholar who rocketed to fame after she wrote an article criticizing Amazon, the lawsuit will test whether her aggressive plan to rein in the power of Big Tech can survive in the courts.

The question is whether or not courts will continue to follow the intellectually bankrupt and deeply corrupt position first promulgated by Robert Bork, which is that the only thing to consider is immediate price impact on consumers.

It is clear that Microsoft you use the acquisition as an anti-competitive weapon, so the merger should be terminated with extreme prejudice.

An Explanation for Folks Who Have Played the RPG Paranoia

It appears that some of the documents seized from Mar-a-Lago were Sensitive Compartmented Information. (SCI)

This is a big deal.  This is a couple of steps above Top Secret.

Think of it as, "Ultraviolet Clearance," from the game role playing game Paranoia on steroids.

(on edit)

The computer is your friend.