For the last year or so, I've been keeping an eye on the Anti-Counterfeiting Trade Agreement (ACTA) with a slightly more than casual level in interest. It is a far reaching and expansive "trade" treaty that seeks to impose harsh penalties on copyright infringers and those who deal in counterfeit goods. A little over a year ago, the Obama Administration refused to divulge any information about ACTA in the first place, citing "national security concerns." Over the last ten years, anybody citing "national security concerns" over anything that isn't remotely related to defense spending, intelligence activities, or military deployments automatically falls into the category of suspicious as hell in my mind. Naturally, the text of the draft agreement leaked out on to the Internet. At that time, the most heinous portions of the agreement were provisions that demanded DMCA-style "notice-and-takedown" rules that demanded material be removed from websites by ISPs if the ISP received word that the material was infringing on somebody's copyright, without any actual effort or mechanism to investigate the veracity of the complaint or appeal the decision. Additionally, there were provisions that prohibited breaking DRM for any reason (again, shades of the DMCA), and rules requiring ISPs to actively police sites with user-contributed material for potential copyright violations, as well as cutting off Internet access to accused (not convicted) infringers. The entire Blogger site, not just this blog, would doubtlessly shut down because of the literally prohibitive cost involved in trying to cover the costs of lawyers who did nothing all day but scour blogs looking for POSSIBLE copyright infringements.
A year later, things have not gotten any better. Two months ago, the MPAA sent a representative to an information meeting about ACTA down in Mexico. It's not terribly surprising in and of itself, since the MPAA has championed the cause of ACTA by crying foul over piracy and believing that ACTA (or the analogous American version of it, COICA) would allow it to finally crush movie piracy in much the same way that the Death Star was supposed to crush the Rebel Alliance. What was surprising at this meeting was that the MPAA rep asked the seemingly innocuous question of whether or not ACTA could be used to block "dangerous" web sites such as WikiLeaks. Keep in mind that this was coming shortly after WikiLeaks dumped almost a hundred thousand pages worth of documents that the Pentagon had classified which contained some of its dirty laundry. The government was pissed off at WikiLeaks and such a question answered in the affirmative could very easily be used as justification to go after equally "dangerous" web sites, though the danger the MPAA is most afraid of is the danger to the bottom lines of the studios as opposed to any trifling concerns about the safety of troops in the field or American civilians potentially targeted by terrorists.
Recently, the Combating Online Infringement and Counterfeits Act (COICA) left the Senate Judiciary Committee. As the EFF reported earlier today, the bill probably won't come up to the full Senate until the start of the next session, but it's troubling given bipartisan opposition to the bill and a host of engineers who basically helped assemble the Internet piece by piece, protocol by protocol. The first most troubling element of the bill is the blacklist. The Attorney General (or those underlings acting in the name of the Attorney General's Office) would suddenly have the power to kill a website if it allegedly had infringing material. Much like the DMCA and ACTA, there's no mechanism in place to contest or appeal such an action, nor is there any provision for an investigation into verifying a claim of copyright infringement. DMCA claims aren't 100% right, what's to say that the COICA would have a better average? It's an unregulated, unchecked, and unspeakably dangerous power. There is simply too little in the way to prevent a gross abuse of the power. The Attorney General's Office and the Attorney General are not elected officials, but rather filled by executive appointment, which means there is absolutely no means of accountability that can effectively be exercised against them. Unaccountable bureaucrats given unchecked power is completely anathema to every principle America claims to hold dear.
The second most troubling element of COICA is the subversion (or perversion, if you prefer) of the DNS infrastructure currently under U.S. control. For the last sixteen years, ever since the Internet became open to public and commercial use, the U.S. has rightly maintained a very hands-off policy towards Domain Name System servers. You type in "Google" in the address bar of your browser, your command brings up Google by directing the request to one of the many servers which hold an IP address owned by Google. This simple mechanism allows used to access sites both puritanical and prurient, commercial and crass, polished and amateurish. Nations like China, Iran, Burma, North Korea, and Saudi Arabia have various filters and cutouts in place to divert requests for "undesirable" sites to sites that are "approved" by the existing regimes, or outright block the requests from ever reaching the undesirable sites, essentially cutting them off from being seen on the "official" Internet by their inhabitants. Such filtering and blocking, exemplified by "The Great Firewall of China," is in place to crush dissent, inhibit communication, and ultimately control the population to keep the existing regimes in power by attempting to mask the inherent flaws and weaknesses in the system. Yet this bill proposes that we emulate those countries, countries that the State Department, the United Nations, and various private organizations have been hectoring for years about their repressive Internet policies. Worse, the bill proposes we do so not to prop up the existing government, but to prop up media conglomerates, businesses that have grown bloated over the years and are deathly afraid of technologies that have the potential to render them extinct. The fact that the U.S. government would have the means to do precisely the same thing as the aforementioned nations is merely poisonous gravy.
The COICA, much like the PATRIOT Act, has been rushed through with absolutely indecent haste, previous efforts to table the bill notwithstanding. Like the PATRIOT Act, the stated benefits cannot possibly outweigh the potential liabilities. Unlike the PATRIOT Act, the single purpose motivating this unholy abortion of a bill is pure unadulterated greed, whatever high minded language might be employed to claim otherwise.
Normally, I don't ask much of my readers. I take it as a given that my work will eventually percolate through the Internet and people will read it. This once, I'd take it as a personal kindness if people who read this would pass a link along to friends and family members. I want people to get mad about this, because it's something they rightly should be mad about. I know that it doesn't seem as important as the unemployment situation, or the financial markets, or the fact that gas and food prices are going up. It's not one of those issues that seemingly has any survival value. Rather, it's an issue that affects the value of survival, and it's important for that reason. What does it gain you to have food in your gut and gas in your tank, but live under threat of being silenced and cut off from the larger world just because some rich bastards in Hollywood are crying foul? Nothing, which is precisely what you have to lose by spreading the word. Thanks.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday, November 18, 2010
Thursday, November 4, 2010
May It Please The Court
Much like my late Uncle David, I'm most likely never going to be a lawyer, though he at least finished law school before deciding he couldn't stand the law profession. Because of my future non-status as a lawyer, I will never likely get the chance to argue a case before the U.S. Supreme Court. The closest I may ever come is filing an amicus brief at some point, and even that's dubious. That being said, I would like to weigh in on the matter of Schwarzenegger vs. Entertainment Merchants Assn. currently under review.
May it please the court...
Peter Ustinov once said that in a free society, one must put up with a great deal of nonsense. As a gamer myself, I will not deny that when you get right down to the core of them, video games are nonsense. They are expensive electronic fripperies, many of them poorly designed, many of them poorly executed, and many of them incapable of producing anything of inherent value beyond a minimal sense of enjoyment built up through the few hours needed to progress from start to finish, a sense of enjoyment that fades as soon as the game is put away or erased off a hard drive. As a reviewer, I see a lot of games whose aesthetic and artistic content ranges from non-existent to superlative, with the bulk of them falling into the range of mediocre to average. The ratio of good games to bad ones is badly lopsided in favor of the bad ones it seems. And while I believe that there are games out there who attempt to paper over a basically weak concept with excessive and possibly even gratuitous amounts of violence, I cannot see there being a compelling reason for the law in question to stand.
So far, the law in question has been struck down by the California Supreme Court and by the Ninth Circuit. Nothing unusual about that. Laws get struck down, appeals are made further up the ladder until one day, they arrive at the Supreme Court for the final ruling. It's not even particularly notable that the California Supreme Court and the Ninth Circuit are both based in California. What is notable is that laws similar to the law in question, across the entire country, have gone up to the appropriate federal circuit court judges and not a single one has survived. For a nation as expansive and as diverse in ideas, creeds, and mentalities as ours, the fact that these laws keep getting struck down suggests that there is at least one constant in American jurisprudence insofar as video games are concerned. That constant is that the State's interest in controlling the sales of these games does not outweigh the First Amendment's protection regarding the content of the games. While a particular game might have objectionable amounts of violent content, the State cannot have a blanket ban on all games with violent content. As much as it might irritate or outrage certain personages, the price of living in a free society means having to put up with the nonsense of violent video games. A person may be outraged about the amount of violent content in a game, but since they live in a free society, they are blessedly under no obligation to purchase that game. Just as a violent video game essentially ignores an individual's personal offense at its subject matter, the offended individual can ignore the violent video game by simply not buying it. It is less a moral issue than a market issue.
"But think of the children!" Ah, yes. The cry for preserving the moral rectitude of the next generation of citizens. A cry which has been uttered over the years with the advent of television, motion pictures, rock music, radio, comic books, rap music, and even the printing press. Given this universal human propensity to view with alarm any media which potentially could expose children to images and concepts which an adult would find objectionable, it's not much of a stretch to picture an ancient Egyptian worrying about the potential harm of hieroglyphics on young and impressionable minds. Fundamentally, it is difficult to disagree with the basic idea of controlling the exposure of young minds to content for which they are not yet mentally or emotionally capable of processing. The disagreement stems not from the desired ends, but from the desired means. The administration and education of moral and ethical propriety is properly the function of parents, not the State. Mother and Father know best, not Big Brother. If it were any other issue besides video games, the suggestion that the State somehow has not only a superior interest but a superior ability to properly raise children into morally and ethically functional adults would cause a full blown rebellion among the populace. The law in question presumes that superior interest and ability while failing to provide any sort of proof to support the presumption. And while society has produced and will always produce exceptional individuals who are morally and or ethically bankrupt, the failure to instill those exceptional individuals with the proper background generally rests with the parents, barring extreme cases of genuine physiological defect or subsequent physical injury.
A noted game designer named Sid Meier once described the general concept of video games as "a series of interesting choices." I would expand upon that definition to read "a series of interesting choices within a specifically arranged set of circumstances." A player makes choices within a game which their electronic alter ego performs. However, there are choices which a player might like to make but which are essentially impossible within the circumstances of the game. The freedom of choice within the confines of a video game are sometimes arbitrarily narrow, either because of mechanical limitations or the intent of the developers to explore a specific set of storylines and thematic issues, but they also have the potential to be quite expansive. Because of this, some of the "visual aids" with which the Court has thus far seen and reacted to with distaste are inherently dishonest. The fact that you can act like a complete and utter psychopath in Postal 2 does not mean that you are obligated to do so, and in fact it's possible to beat the game by reacting in a purely defensive fashion to immediate threats to your alter ego's safety. As the development company, Running With Scissors, pointed out during their original marketing campaign, "It's only as violent as you are!" The scandalous "Hot Coffee" content in Grand Theft Auto: San Andreas, which could only be accessed on the PC version of the game and even then requiring a bit of hacking to get at, is a minor element in a series which has routinely mocked the nihilism and self-destructive behavior of the romanticized "life of crime" which some people still believe to be a viable lifestyle. As with Postal 2, the fact that you can act like a thug, a hoodlum, or a wiseguy in-between the chapters of the game's storyline doesn't mean that you are in any way obligated to do so. And while developers cannot account for every possible permutation of choice within their games, they can keep the effects of those choices within the confines of the game, perhaps upsetting or disturbing a player's actual state of mind, perhaps enlightening it, perhaps generating nothing at all. The final impact of the choices made within the confines of a game is that the game ends. If a person has dreams with content influenced by the game and the choices they made within the game, it's little more than coincidence. There is no reason to believe that violent video games are brainwashing American youth into psychopathic killing machines.
"But what about Columbine?! They customized a video game to practice killing people!" While I will not deny the Columbine shootings in particular, and school shootings in general, were tragic and deeply disturbing, I am not going to take the easy road and blame an inanimate object for the actions of psychologically disturbed individuals. When a person modifies an automobile and gets into a wreck which kills somebody, do we blame the car manufacturer? Do we blame the company who made the customized parts for the car? No, we blame the driver, because the driver was in control of the vehicle at the time of the collision. By the same token, blaming violent video games for a school shooting just because the perpetrators played the games or even modified the games to further their depraved fantasies and psychoses is equally spurious. A more apt analogy would be the federal government charging Martin Scorcese as an accomplice before the fact in the attempted assassination of Ronald Reagan. John Hinckley, Jr. had attempted the assassination in an effort to impress Jodie Foster, whom he'd become obsessed with having watched the movie Taxi Driver an inordinate number of times. Yet Scorcese was never charged, nor was there even a hint of charging him, and rightly so. Had any lawyer tried to proceed with such a prosecution, they'd have been laughed out of court. Put simply, crazy people don't need violent video games to help them be crazy.
"What about that guy that killed himself over EverQuest?" Same basic premise, slightly different circumstances. The end result was the same. The game did not tell him to kill himself, and efforts to hold the game company liable are laughable. The man clearly needed, and clearly wasn't receiving, some very rigorous psychiatric assistance. The game did not prevent him from getting the help he needed.
"What about the woman who shook her child to death because she was playing FarmVille?" Having played FarmVille myself, I can tell you that it's probably one of the least violent video games ever made. You plant flowers and vegetables, you pick them, you sell them, you plant more. The fact that this woman shook her child to death while playing a non-violent video game seems to lend credence to the idea that it's not the games that are at fault for violent behavior.
The First Amendment covers not only the written word, but visual representations, audio recordings, and various other artistic media through which individuals or groups of individuals can express themselves with the promise that their work will not be subject to punitive sanctions from the State. Video games, as a medium for artistic expression, are still very much in their infancy, despite having been around in one form or another for the past quarter century. If one looks back, one would find a very strong historical parallel between video games and comic books. Prior to 1954, comic books were not just for children. Comic book stories were not simply about superheroes, but covered a broad range genres and topics. You had detective stories right up there with the best film noir. You had horror themed comics with gruesome monsters and hapless victims. The potential for storylines and characterizations on par with great literature fused with cutting edge artwork by some of the most talented artists of the generation was almost palpable. And then, one child psychologist by the name of Fredric Wertham went and published a book by the title Seduction of The Innocent, which was nothing more than a screed blaming comic books for every sort of social ill present at the time. It whipped up sufficient furor that the U.S. Senate was contemplating regulation of the comic book industry. Instead of regulation, the Comics Code was established. A more benighted and patently offensive edifice of censorship likely has not been created in the entire history of the country. A "code of conduct" that forbid not only depictions of violence and overt sexual content, but also forbid the depiction of concealed weapons (for reasons I can't fathom), any mention of supernatural creatures such as vampires or zombies (most likely aimed deliberately at publisher William Gaines, famous for Tales From The Crypt and MAD), any hint or suggestion that the police or courts couldn't be trusted, and enforced endings where the good guy always won and the criminal always punished. Today, history looks at Seduction of The Innocent and the Comics Code, and the conclusion drawn invariably is that it crippled the comic book industry. That a new and exciting form of artistic media was smothered and almost killed in the name of a moralistic fantasy more divorced from reality than any superhero or horror comic ever could be. Surely, the esteemed justices of the Court know that sometimes the cops really are the bad guys, that convicted criminals really are innocent victims, and that the good guys can in fact lose. I find it an overwhelming irony that the author of the law in question is a child psychologist.
A final point of consideration for the Court. The law in question is supposed to affect retailers who knowingly sell what is to be determined (by mechanisms yet undefined and regulatory entities yet unformed) to be an excessively violent video game to minors. Yet the law does not appear to make any provisions for or mention of companies who are using digital distribution methods for video games. Will Sony or Microsoft be slapped with a fine each time a game that doesn't meet the law's standards gets sold through their respective online marketplaces? Will people who purchase a game through Valve's Steam service or Stardock's Impulse service unwittingly open those companies up to fines if their title is played by a child within the household? Or worse, by a neighbor's child? The potential for spurious civil suits cropping up based off these scenarios makes my skin crawl.
I leave you honored jurists with a quote from Justice Louis Brandeis. "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
May it please the court...
Peter Ustinov once said that in a free society, one must put up with a great deal of nonsense. As a gamer myself, I will not deny that when you get right down to the core of them, video games are nonsense. They are expensive electronic fripperies, many of them poorly designed, many of them poorly executed, and many of them incapable of producing anything of inherent value beyond a minimal sense of enjoyment built up through the few hours needed to progress from start to finish, a sense of enjoyment that fades as soon as the game is put away or erased off a hard drive. As a reviewer, I see a lot of games whose aesthetic and artistic content ranges from non-existent to superlative, with the bulk of them falling into the range of mediocre to average. The ratio of good games to bad ones is badly lopsided in favor of the bad ones it seems. And while I believe that there are games out there who attempt to paper over a basically weak concept with excessive and possibly even gratuitous amounts of violence, I cannot see there being a compelling reason for the law in question to stand.
So far, the law in question has been struck down by the California Supreme Court and by the Ninth Circuit. Nothing unusual about that. Laws get struck down, appeals are made further up the ladder until one day, they arrive at the Supreme Court for the final ruling. It's not even particularly notable that the California Supreme Court and the Ninth Circuit are both based in California. What is notable is that laws similar to the law in question, across the entire country, have gone up to the appropriate federal circuit court judges and not a single one has survived. For a nation as expansive and as diverse in ideas, creeds, and mentalities as ours, the fact that these laws keep getting struck down suggests that there is at least one constant in American jurisprudence insofar as video games are concerned. That constant is that the State's interest in controlling the sales of these games does not outweigh the First Amendment's protection regarding the content of the games. While a particular game might have objectionable amounts of violent content, the State cannot have a blanket ban on all games with violent content. As much as it might irritate or outrage certain personages, the price of living in a free society means having to put up with the nonsense of violent video games. A person may be outraged about the amount of violent content in a game, but since they live in a free society, they are blessedly under no obligation to purchase that game. Just as a violent video game essentially ignores an individual's personal offense at its subject matter, the offended individual can ignore the violent video game by simply not buying it. It is less a moral issue than a market issue.
"But think of the children!" Ah, yes. The cry for preserving the moral rectitude of the next generation of citizens. A cry which has been uttered over the years with the advent of television, motion pictures, rock music, radio, comic books, rap music, and even the printing press. Given this universal human propensity to view with alarm any media which potentially could expose children to images and concepts which an adult would find objectionable, it's not much of a stretch to picture an ancient Egyptian worrying about the potential harm of hieroglyphics on young and impressionable minds. Fundamentally, it is difficult to disagree with the basic idea of controlling the exposure of young minds to content for which they are not yet mentally or emotionally capable of processing. The disagreement stems not from the desired ends, but from the desired means. The administration and education of moral and ethical propriety is properly the function of parents, not the State. Mother and Father know best, not Big Brother. If it were any other issue besides video games, the suggestion that the State somehow has not only a superior interest but a superior ability to properly raise children into morally and ethically functional adults would cause a full blown rebellion among the populace. The law in question presumes that superior interest and ability while failing to provide any sort of proof to support the presumption. And while society has produced and will always produce exceptional individuals who are morally and or ethically bankrupt, the failure to instill those exceptional individuals with the proper background generally rests with the parents, barring extreme cases of genuine physiological defect or subsequent physical injury.
A noted game designer named Sid Meier once described the general concept of video games as "a series of interesting choices." I would expand upon that definition to read "a series of interesting choices within a specifically arranged set of circumstances." A player makes choices within a game which their electronic alter ego performs. However, there are choices which a player might like to make but which are essentially impossible within the circumstances of the game. The freedom of choice within the confines of a video game are sometimes arbitrarily narrow, either because of mechanical limitations or the intent of the developers to explore a specific set of storylines and thematic issues, but they also have the potential to be quite expansive. Because of this, some of the "visual aids" with which the Court has thus far seen and reacted to with distaste are inherently dishonest. The fact that you can act like a complete and utter psychopath in Postal 2 does not mean that you are obligated to do so, and in fact it's possible to beat the game by reacting in a purely defensive fashion to immediate threats to your alter ego's safety. As the development company, Running With Scissors, pointed out during their original marketing campaign, "It's only as violent as you are!" The scandalous "Hot Coffee" content in Grand Theft Auto: San Andreas, which could only be accessed on the PC version of the game and even then requiring a bit of hacking to get at, is a minor element in a series which has routinely mocked the nihilism and self-destructive behavior of the romanticized "life of crime" which some people still believe to be a viable lifestyle. As with Postal 2, the fact that you can act like a thug, a hoodlum, or a wiseguy in-between the chapters of the game's storyline doesn't mean that you are in any way obligated to do so. And while developers cannot account for every possible permutation of choice within their games, they can keep the effects of those choices within the confines of the game, perhaps upsetting or disturbing a player's actual state of mind, perhaps enlightening it, perhaps generating nothing at all. The final impact of the choices made within the confines of a game is that the game ends. If a person has dreams with content influenced by the game and the choices they made within the game, it's little more than coincidence. There is no reason to believe that violent video games are brainwashing American youth into psychopathic killing machines.
"But what about Columbine?! They customized a video game to practice killing people!" While I will not deny the Columbine shootings in particular, and school shootings in general, were tragic and deeply disturbing, I am not going to take the easy road and blame an inanimate object for the actions of psychologically disturbed individuals. When a person modifies an automobile and gets into a wreck which kills somebody, do we blame the car manufacturer? Do we blame the company who made the customized parts for the car? No, we blame the driver, because the driver was in control of the vehicle at the time of the collision. By the same token, blaming violent video games for a school shooting just because the perpetrators played the games or even modified the games to further their depraved fantasies and psychoses is equally spurious. A more apt analogy would be the federal government charging Martin Scorcese as an accomplice before the fact in the attempted assassination of Ronald Reagan. John Hinckley, Jr. had attempted the assassination in an effort to impress Jodie Foster, whom he'd become obsessed with having watched the movie Taxi Driver an inordinate number of times. Yet Scorcese was never charged, nor was there even a hint of charging him, and rightly so. Had any lawyer tried to proceed with such a prosecution, they'd have been laughed out of court. Put simply, crazy people don't need violent video games to help them be crazy.
"What about that guy that killed himself over EverQuest?" Same basic premise, slightly different circumstances. The end result was the same. The game did not tell him to kill himself, and efforts to hold the game company liable are laughable. The man clearly needed, and clearly wasn't receiving, some very rigorous psychiatric assistance. The game did not prevent him from getting the help he needed.
"What about the woman who shook her child to death because she was playing FarmVille?" Having played FarmVille myself, I can tell you that it's probably one of the least violent video games ever made. You plant flowers and vegetables, you pick them, you sell them, you plant more. The fact that this woman shook her child to death while playing a non-violent video game seems to lend credence to the idea that it's not the games that are at fault for violent behavior.
The First Amendment covers not only the written word, but visual representations, audio recordings, and various other artistic media through which individuals or groups of individuals can express themselves with the promise that their work will not be subject to punitive sanctions from the State. Video games, as a medium for artistic expression, are still very much in their infancy, despite having been around in one form or another for the past quarter century. If one looks back, one would find a very strong historical parallel between video games and comic books. Prior to 1954, comic books were not just for children. Comic book stories were not simply about superheroes, but covered a broad range genres and topics. You had detective stories right up there with the best film noir. You had horror themed comics with gruesome monsters and hapless victims. The potential for storylines and characterizations on par with great literature fused with cutting edge artwork by some of the most talented artists of the generation was almost palpable. And then, one child psychologist by the name of Fredric Wertham went and published a book by the title Seduction of The Innocent, which was nothing more than a screed blaming comic books for every sort of social ill present at the time. It whipped up sufficient furor that the U.S. Senate was contemplating regulation of the comic book industry. Instead of regulation, the Comics Code was established. A more benighted and patently offensive edifice of censorship likely has not been created in the entire history of the country. A "code of conduct" that forbid not only depictions of violence and overt sexual content, but also forbid the depiction of concealed weapons (for reasons I can't fathom), any mention of supernatural creatures such as vampires or zombies (most likely aimed deliberately at publisher William Gaines, famous for Tales From The Crypt and MAD), any hint or suggestion that the police or courts couldn't be trusted, and enforced endings where the good guy always won and the criminal always punished. Today, history looks at Seduction of The Innocent and the Comics Code, and the conclusion drawn invariably is that it crippled the comic book industry. That a new and exciting form of artistic media was smothered and almost killed in the name of a moralistic fantasy more divorced from reality than any superhero or horror comic ever could be. Surely, the esteemed justices of the Court know that sometimes the cops really are the bad guys, that convicted criminals really are innocent victims, and that the good guys can in fact lose. I find it an overwhelming irony that the author of the law in question is a child psychologist.
A final point of consideration for the Court. The law in question is supposed to affect retailers who knowingly sell what is to be determined (by mechanisms yet undefined and regulatory entities yet unformed) to be an excessively violent video game to minors. Yet the law does not appear to make any provisions for or mention of companies who are using digital distribution methods for video games. Will Sony or Microsoft be slapped with a fine each time a game that doesn't meet the law's standards gets sold through their respective online marketplaces? Will people who purchase a game through Valve's Steam service or Stardock's Impulse service unwittingly open those companies up to fines if their title is played by a child within the household? Or worse, by a neighbor's child? The potential for spurious civil suits cropping up based off these scenarios makes my skin crawl.
I leave you honored jurists with a quote from Justice Louis Brandeis. "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Monday, May 10, 2010
Border Brouhaha
Sometimes, the writers of The Armchair Empire get bored. There's only so much one can talk about in the games industry before you need to take a break from it. Politics is one of those areas that doesn't get a lot of talk in the site's forums, but when one of the writers asked me for my thoughts on the recently passed SB1070 bill here in Arizona, I obliged him the only way I really knew how. Below is the text of my main response. The link to the full forum thread can be found here.
* * *
The whole business with SB1070 and the issues it is supposed to be alleviating depends a lot upon how one parses language and how one reacts to words.
The bare bones of the case: Mexico is still an unstable broke-as-hell country. There's very few opportunities south of the border that don't involve smuggling drugs, guns, or people, so everybody and his brother seems to be trying to go north of the border. The last several years, it's gotten a lot more unstable, particularly since Felipe Calderon took office and deployed Army troops to fight the drug cartels. At the same time, almost 9 years after 9/11, the federal government STILL hasn't managed to get their shit together and make serious and substantive efforts at securing the US/Mexican border.
Despite the euphemistic phrase "undocumented workers" being bandied about, the plain fact is that crossing the border without going through the admittedly byzantine process of getting work visas or green cards does, in fact, make one an illegal alien under federal law. While Mexicans who have work in and around the Nogales area right on the border might be able to bounce back and forth (legal or not), once you get north of there, it becomes a practical impossibility to work in the state and not live here. It's not like there's giant caravans of Mexicans running around the state, moving from job to job like an echo of the Okies back during the Great Depression. Mexicans are coming up, grabbing shit jobs, crashing at slum apartments, and generally not making any effort to actually become citizens, get resident alien status, or even just try to get a work visa. And that's the best case scenario.
What's been happening more and more frequently is Mexicans getting stuffed into trucks and vans by smugglers ("coyotes" in the local vernacular), then carted off to drop houses in residential neighborhoods where they either become hostages (so the coyotes can extort more money from the families back in Mexico) or virtual slaves. For those who don't get a ride up Interstate 10 to Phoenix, they march straight through both public and private lands, usually littering and destroying the environment in the process. With the increasing violence from the drug cartels, there are folks north of the border that are ending up getting injured and or killed, usually by smugglers or their immediate associates. It's not a situation designed to help people sleep soundly at night.
Looking at the text of the bill, there are two sub-sections which I can imagine create a great deal of consternation. Subsection B reads "FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c)." Subsection E reads "A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES." You can read the full text of the bill here.
The reasons why the consternation might be coming about are manifold. First, there's a pretty large Hispanic population in Arizona, as you might well imagine. "Reasonable suspicion" is a lower standard of proof than "probable cause," which means that as a practical matter, there's a whole lot of people that could potentially get stopped just to make sure they're not illegals. Secondly, the fact that being an illegal alien is a "public offense" creates conditions where if you get stopped by a cop under Subsection B, you can get busted under Subsection E. The text of the bill does lay out provisions for people to contest their arrest if they believe they've been wrongfully arrested, and it does lay out provisions that indicate cops who just go around busting people because they've got brown skin and a Spanish surname won't have any sort of support or protection from the state or municipality if they get hauled into court. A couple days ago, an amendment to the bill specifically prohibiting racial profiling was passed and signed. The problem with all of this, however, is that the issues aren't nearly so cut and dried.
The common assumption and attitude among those who are in an uproar over the bill is that America is being anti-immigrant. And to be sure, the process for becoming a resident alien or a full US citizen has never been a cakewalk. But once you've got it, you're golden. And if you think the process for America is bad, try looking at the process for Japan sometime and then come back to me to bitch about how "unfair" America's naturalization process is to people. I know folks who immigrated legally to the US, went through the process, took all the stupid classes, took their tests, and took their oath. The ones who went through all that trouble are generally pretty pissed, and rightly so, at the illegals coming up from Mexico precisely because the Mexicans aren't bothering to make the effort. It becomes a giant merry-go-round where Mexicans cross the border, get work, get caught, get shipped back to Mexico, and then cross the border to start it all over again. Compounding the problem is the perception by some illegals that they're performing a "reconquista," that they're not entering the US but rather Mexican territory illegally occupied by the US. After the end of the Mexican-American War in 1848, which Mexico lost badly, the Treaty of Guadalupe Hidalgo ceded Texas and California, as well as what would later become Nevada, Utah, and Arizona, along with chunks of Colorado, New Mexico, and Wyoming. Subsequently, the Gadsden Purchase in 1853 bought the remaining southern portions of Arizona and New Mexico from the Mexican government. To some Mexicans, the entire affair is a national insult, and you sometimes hear Mexicans blathering on about how they're taking back what was stolen from them.
Further complicating the problem is the abuse of the Fourteenth Amendment to the US Constitution. What was intended to ensure that former black slaves and their children would be legally treated as American citizens has boomeranged into a situation whereby foreign citizens, legal and otherwise, are entering the US to give birth because the current reading of the law grants their newborn children automatic American citizenship. When these children grow up, they can legally enter the country without any problem and be able to bring their parents and siblings over because they're family members. It's a loophole that needs to be rectified.
As if all this wasn't enough, there's the financial angle to look at. It's not just the illegals that are making money on the situation, it's businesses that hire illegals that are making money off it, if only indirectly. The simplest measure for paying illegals would be through cash. Since it's cash, there's a lot less of a paper trail to follow, which means the business saves money because they're not paying into Social Security or Medicare. By using fake Social Security numbers or fake taxpayer ID numbers, businesses can potentially get more money back from the government when the tax refunds are disbursed, though there's also the potential for the feds to come by and do some digging through the records. Should that occur, the employer can disavow any discrepancies as the action of the illegal alien. It should be mentioned that there are notionally checks in place to discourage using fake or stolen information, and there are legitimate businesses that do everything right but still end up unwittingly hiring an illegal alien because they happened to have a good set of faked credentials.
To top it off, there is an element of political armtwisting involved with the passage of the bill. As weird as it may sound, Arizona wants the federal government to step in and do something about the border situation. However, the usual legislative process has consistently put immigration and border security issues to the back burner in favor of financial issues (which were pretty critical at the time), health care (which nobody seems to be super happy about outside of D.C.), and other issues which never seem quite as important. Since Congress can't or won't take action on the issue, Arizona is attempting to force them to do something about it. By passing the bill, they're applying pressure to the feds to get serious about border issues. In the long run, Arizona knows that it can't choke off the flow of illegal aliens completely, but in the short term, the bill potentially will shift the avenues of illegal border crossing into New Mexico, Texas, and California. Theoretically, if New Mexico and Texas pass similar bills, California will be the only state which will be considered "safe" to cross into, which will doubtlessly put a strain on the resources in a state which is already uncomfortably close to insolvency. By making California cry "uncle!", the federal government really will have to get serious about the border. The best case scenario is that the feds realize exactly what Arizona is doing and start making substantive changes to border and immigration policy before it ever reaches the point where Texas and New Mexico follow suit. However, I don't imagine that anybody in the current administration has that level of foresight.
It is a great stinking mess and it remains to be seen if anybody has the requisite intestinal fortitude to shove a hand into this sack full of snakes and pull out a good workable solution.
* * *
The whole business with SB1070 and the issues it is supposed to be alleviating depends a lot upon how one parses language and how one reacts to words.
The bare bones of the case: Mexico is still an unstable broke-as-hell country. There's very few opportunities south of the border that don't involve smuggling drugs, guns, or people, so everybody and his brother seems to be trying to go north of the border. The last several years, it's gotten a lot more unstable, particularly since Felipe Calderon took office and deployed Army troops to fight the drug cartels. At the same time, almost 9 years after 9/11, the federal government STILL hasn't managed to get their shit together and make serious and substantive efforts at securing the US/Mexican border.
Despite the euphemistic phrase "undocumented workers" being bandied about, the plain fact is that crossing the border without going through the admittedly byzantine process of getting work visas or green cards does, in fact, make one an illegal alien under federal law. While Mexicans who have work in and around the Nogales area right on the border might be able to bounce back and forth (legal or not), once you get north of there, it becomes a practical impossibility to work in the state and not live here. It's not like there's giant caravans of Mexicans running around the state, moving from job to job like an echo of the Okies back during the Great Depression. Mexicans are coming up, grabbing shit jobs, crashing at slum apartments, and generally not making any effort to actually become citizens, get resident alien status, or even just try to get a work visa. And that's the best case scenario.
What's been happening more and more frequently is Mexicans getting stuffed into trucks and vans by smugglers ("coyotes" in the local vernacular), then carted off to drop houses in residential neighborhoods where they either become hostages (so the coyotes can extort more money from the families back in Mexico) or virtual slaves. For those who don't get a ride up Interstate 10 to Phoenix, they march straight through both public and private lands, usually littering and destroying the environment in the process. With the increasing violence from the drug cartels, there are folks north of the border that are ending up getting injured and or killed, usually by smugglers or their immediate associates. It's not a situation designed to help people sleep soundly at night.
Looking at the text of the bill, there are two sub-sections which I can imagine create a great deal of consternation. Subsection B reads "FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c)." Subsection E reads "A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES." You can read the full text of the bill here.
The reasons why the consternation might be coming about are manifold. First, there's a pretty large Hispanic population in Arizona, as you might well imagine. "Reasonable suspicion" is a lower standard of proof than "probable cause," which means that as a practical matter, there's a whole lot of people that could potentially get stopped just to make sure they're not illegals. Secondly, the fact that being an illegal alien is a "public offense" creates conditions where if you get stopped by a cop under Subsection B, you can get busted under Subsection E. The text of the bill does lay out provisions for people to contest their arrest if they believe they've been wrongfully arrested, and it does lay out provisions that indicate cops who just go around busting people because they've got brown skin and a Spanish surname won't have any sort of support or protection from the state or municipality if they get hauled into court. A couple days ago, an amendment to the bill specifically prohibiting racial profiling was passed and signed. The problem with all of this, however, is that the issues aren't nearly so cut and dried.
The common assumption and attitude among those who are in an uproar over the bill is that America is being anti-immigrant. And to be sure, the process for becoming a resident alien or a full US citizen has never been a cakewalk. But once you've got it, you're golden. And if you think the process for America is bad, try looking at the process for Japan sometime and then come back to me to bitch about how "unfair" America's naturalization process is to people. I know folks who immigrated legally to the US, went through the process, took all the stupid classes, took their tests, and took their oath. The ones who went through all that trouble are generally pretty pissed, and rightly so, at the illegals coming up from Mexico precisely because the Mexicans aren't bothering to make the effort. It becomes a giant merry-go-round where Mexicans cross the border, get work, get caught, get shipped back to Mexico, and then cross the border to start it all over again. Compounding the problem is the perception by some illegals that they're performing a "reconquista," that they're not entering the US but rather Mexican territory illegally occupied by the US. After the end of the Mexican-American War in 1848, which Mexico lost badly, the Treaty of Guadalupe Hidalgo ceded Texas and California, as well as what would later become Nevada, Utah, and Arizona, along with chunks of Colorado, New Mexico, and Wyoming. Subsequently, the Gadsden Purchase in 1853 bought the remaining southern portions of Arizona and New Mexico from the Mexican government. To some Mexicans, the entire affair is a national insult, and you sometimes hear Mexicans blathering on about how they're taking back what was stolen from them.
Further complicating the problem is the abuse of the Fourteenth Amendment to the US Constitution. What was intended to ensure that former black slaves and their children would be legally treated as American citizens has boomeranged into a situation whereby foreign citizens, legal and otherwise, are entering the US to give birth because the current reading of the law grants their newborn children automatic American citizenship. When these children grow up, they can legally enter the country without any problem and be able to bring their parents and siblings over because they're family members. It's a loophole that needs to be rectified.
As if all this wasn't enough, there's the financial angle to look at. It's not just the illegals that are making money on the situation, it's businesses that hire illegals that are making money off it, if only indirectly. The simplest measure for paying illegals would be through cash. Since it's cash, there's a lot less of a paper trail to follow, which means the business saves money because they're not paying into Social Security or Medicare. By using fake Social Security numbers or fake taxpayer ID numbers, businesses can potentially get more money back from the government when the tax refunds are disbursed, though there's also the potential for the feds to come by and do some digging through the records. Should that occur, the employer can disavow any discrepancies as the action of the illegal alien. It should be mentioned that there are notionally checks in place to discourage using fake or stolen information, and there are legitimate businesses that do everything right but still end up unwittingly hiring an illegal alien because they happened to have a good set of faked credentials.
To top it off, there is an element of political armtwisting involved with the passage of the bill. As weird as it may sound, Arizona wants the federal government to step in and do something about the border situation. However, the usual legislative process has consistently put immigration and border security issues to the back burner in favor of financial issues (which were pretty critical at the time), health care (which nobody seems to be super happy about outside of D.C.), and other issues which never seem quite as important. Since Congress can't or won't take action on the issue, Arizona is attempting to force them to do something about it. By passing the bill, they're applying pressure to the feds to get serious about border issues. In the long run, Arizona knows that it can't choke off the flow of illegal aliens completely, but in the short term, the bill potentially will shift the avenues of illegal border crossing into New Mexico, Texas, and California. Theoretically, if New Mexico and Texas pass similar bills, California will be the only state which will be considered "safe" to cross into, which will doubtlessly put a strain on the resources in a state which is already uncomfortably close to insolvency. By making California cry "uncle!", the federal government really will have to get serious about the border. The best case scenario is that the feds realize exactly what Arizona is doing and start making substantive changes to border and immigration policy before it ever reaches the point where Texas and New Mexico follow suit. However, I don't imagine that anybody in the current administration has that level of foresight.
It is a great stinking mess and it remains to be seen if anybody has the requisite intestinal fortitude to shove a hand into this sack full of snakes and pull out a good workable solution.
Friday, April 9, 2010
What Goes Around
Tuesday wasn't exactly a banner day for the FCC as a federal appeals court unanimously decided that the agency had overreached itself when ordering broadband provider Comcast not to block its customers from using BitTorrent. Comcast's spokesman was clearly pleased with the ruling when relaying the company's official statement: "our primary goal was always to clear our name and reputation." And yes, I just threw up a little in my mouth typing that.
This particular case has me feeling highly ambivalent. On the one hand, I'm not exactly a cheerleader for the expansion of government power, and the FCC has demonstrated that when they use their power, they're about as subtle as a sequoia falling down, and not nearly as intelligent. One slipped nipple and the Super Bowl halftime shows have largely suffered for it for the last several years (though I did like it when Tom Petty went on). On the other hand, I'm not exactly a firm believer in the inherent goodness of the average American corporation either, particularly not one who's in the position to dictate how a measurable percentage of Americans access the Internet. The old saw about being between the Devil and the deep blue sea certainly comes to mind.
So, what exactly happened on Tuesday and how is this going to affect the country? To begin with, while I am not at all happy about the ruling, I do have to tip my hat to the judges for at least recognizing that the stated goal of the FCC in attempting to keep the Internet "free and open" wasn't at issue, merely their efforts to go about making it happen. In a nutshell, the court ruled that the FCC's policies did not have the force of law. By and large, this is a quite reasonable position to take, since the ruling doesn't just prohibit sound policies from being applied as law, but it also prohibits stupid policies from being applied as law. If the FCC wants to enforce net neutrality, they have a few options available to them. The first option would be to go to Congress and tell them to give the FCC the necessary power to make Comcast stop blocking subscribers. This is probably the least likely to happen, mainly because it could possibly be years before such a bill got out of committee and up for a vote. Moreover, Congress isn't exactly beloved of the people right at the moment, and all it would take to kill any bill would be a few whispers placed in the right ears of the right talking heads. "Look!" the heads would say with gravity and outrage, "Look how Congress is trying to ram more government down our throats!" The second option would be to appeal up to the Supreme Court. This one might actually take longer than having to deal with Congress. With Congress, you can always reintroduce a bill. If the Supremes decide to take a case, or decline to take it, that's it. Do not pass Go, do not collect $200.
Probably as we speak, Comcast technicians are putting the port blocking in place for BitTorrent and other file sharing programs, and probably other programs that it feels "unfairly competes" (read: free) with their subscription services, all while the suits are chortling and thinking that they showed the FCC who's boss. That would be a fatally foolish attitude to be adopting, because there is a third option, one that is not only the most expeditious but also potentially the most troublesome. The FCC could decide that that broadband services are to fall under the same rules as phone lines, with all of the attending "common carrier" regulations. It's less of a "nuclear option" and more of a "neutron bomb option," meaning that all the infrastructure will still be there, but nobody will be around to use it. Why will nobody be around to use it? Because once those regulations are in place, the broadband ISPs like Comcast and Cox will not be lowering prices, they will be raising them. Purely for "administrative costs" to defray "traffic generated by other networks." The increase in prices, particularly in a recessionary climate, will cause people to cut back or even abandon their broadband connections, as much as it will pain them to do so. This will cause the ISPs to raise prices further, to cover the costs of "maintaining our award winning broadband services." In turn, more people abandon their broadband. When it's all said and done, ISPs won't be offering broadband anymore because they'll claim that "there's no interest in the product." Nevermind the fact that people once had broadband and were quite happy with it as a general rule. The difference between a ripple effect and a blast wave is a matter of perspective.
It's not going to be just the average American consumer who's going to get hit by this. The earliest victims will be bandwidth-intensive but incredibly popular sites and services. YouTube? Reduced to a shell of its former self. Skype? Gone. Hulu? The biggest disappointment for NBC Universal since they screwed Conan O'Brien. From there, the carnage spreads out into other areas, predominantly into the game sector. The twelve million plus players on World of WarCraft will suddenly find themselves brought down by a foe more terrible than Onyxia or The Lich King. Microsoft's XBox Live and Sony's Playstation Network will become shadows of their former glory, reduced to branded patch servers. Steam and Impulse will collapse as gamers are cut off from the virtual marketplaces. All those stupid bastards who went and bought the PC version of Assassin's Creed II will howl at the money wasted because Ubisoft wasn't smart enough to foresee the possible amputation of broadband, and the guys at Blizzard will probably be living out of their cubicles to try and change Diablo III to avoid that same mistake. Would there be any survivors of this apocalypse? Twitter might well survive, despite some people's desire to the contrary, since anybody with a cell phone could update on that. Facebook and MySpace will probably take a hit, but continue on as before.
I can hear somebody out in the Peanut Gallery saying, "The world will not end because you stupid Americans don't have broadband!" Whoever that is, you're right. The world will not end. But it will change. If the last fifteen years or so have been any indicator, what happens on the Internet and to the Internet in one geographic area can have almost incalculable changes to the rest of the world. And there is no guarantee that those changes will be good for any other part of the world. It would be a sorry state of affairs that America entered the Information Age equivalent of a Dark Age simply because one ISP went and sued the FCC because of a spat over the use of bandwidth for a program that competed with the ISP's non-Internet products. Some will doubtlessly argue that such a nightmare scenario could never possibly happen. Perhaps not to the degree that I've outlined here, but don't think for one instant that the blowback from this case won't touch anybody beyond Comcast and the FCC.
Even today, karma is a vital and active force within the Internet. What goes around does come around. And I don't like to think what will happen when it finally comes around.
This particular case has me feeling highly ambivalent. On the one hand, I'm not exactly a cheerleader for the expansion of government power, and the FCC has demonstrated that when they use their power, they're about as subtle as a sequoia falling down, and not nearly as intelligent. One slipped nipple and the Super Bowl halftime shows have largely suffered for it for the last several years (though I did like it when Tom Petty went on). On the other hand, I'm not exactly a firm believer in the inherent goodness of the average American corporation either, particularly not one who's in the position to dictate how a measurable percentage of Americans access the Internet. The old saw about being between the Devil and the deep blue sea certainly comes to mind.
So, what exactly happened on Tuesday and how is this going to affect the country? To begin with, while I am not at all happy about the ruling, I do have to tip my hat to the judges for at least recognizing that the stated goal of the FCC in attempting to keep the Internet "free and open" wasn't at issue, merely their efforts to go about making it happen. In a nutshell, the court ruled that the FCC's policies did not have the force of law. By and large, this is a quite reasonable position to take, since the ruling doesn't just prohibit sound policies from being applied as law, but it also prohibits stupid policies from being applied as law. If the FCC wants to enforce net neutrality, they have a few options available to them. The first option would be to go to Congress and tell them to give the FCC the necessary power to make Comcast stop blocking subscribers. This is probably the least likely to happen, mainly because it could possibly be years before such a bill got out of committee and up for a vote. Moreover, Congress isn't exactly beloved of the people right at the moment, and all it would take to kill any bill would be a few whispers placed in the right ears of the right talking heads. "Look!" the heads would say with gravity and outrage, "Look how Congress is trying to ram more government down our throats!" The second option would be to appeal up to the Supreme Court. This one might actually take longer than having to deal with Congress. With Congress, you can always reintroduce a bill. If the Supremes decide to take a case, or decline to take it, that's it. Do not pass Go, do not collect $200.
Probably as we speak, Comcast technicians are putting the port blocking in place for BitTorrent and other file sharing programs, and probably other programs that it feels "unfairly competes" (read: free) with their subscription services, all while the suits are chortling and thinking that they showed the FCC who's boss. That would be a fatally foolish attitude to be adopting, because there is a third option, one that is not only the most expeditious but also potentially the most troublesome. The FCC could decide that that broadband services are to fall under the same rules as phone lines, with all of the attending "common carrier" regulations. It's less of a "nuclear option" and more of a "neutron bomb option," meaning that all the infrastructure will still be there, but nobody will be around to use it. Why will nobody be around to use it? Because once those regulations are in place, the broadband ISPs like Comcast and Cox will not be lowering prices, they will be raising them. Purely for "administrative costs" to defray "traffic generated by other networks." The increase in prices, particularly in a recessionary climate, will cause people to cut back or even abandon their broadband connections, as much as it will pain them to do so. This will cause the ISPs to raise prices further, to cover the costs of "maintaining our award winning broadband services." In turn, more people abandon their broadband. When it's all said and done, ISPs won't be offering broadband anymore because they'll claim that "there's no interest in the product." Nevermind the fact that people once had broadband and were quite happy with it as a general rule. The difference between a ripple effect and a blast wave is a matter of perspective.
It's not going to be just the average American consumer who's going to get hit by this. The earliest victims will be bandwidth-intensive but incredibly popular sites and services. YouTube? Reduced to a shell of its former self. Skype? Gone. Hulu? The biggest disappointment for NBC Universal since they screwed Conan O'Brien. From there, the carnage spreads out into other areas, predominantly into the game sector. The twelve million plus players on World of WarCraft will suddenly find themselves brought down by a foe more terrible than Onyxia or The Lich King. Microsoft's XBox Live and Sony's Playstation Network will become shadows of their former glory, reduced to branded patch servers. Steam and Impulse will collapse as gamers are cut off from the virtual marketplaces. All those stupid bastards who went and bought the PC version of Assassin's Creed II will howl at the money wasted because Ubisoft wasn't smart enough to foresee the possible amputation of broadband, and the guys at Blizzard will probably be living out of their cubicles to try and change Diablo III to avoid that same mistake. Would there be any survivors of this apocalypse? Twitter might well survive, despite some people's desire to the contrary, since anybody with a cell phone could update on that. Facebook and MySpace will probably take a hit, but continue on as before.
I can hear somebody out in the Peanut Gallery saying, "The world will not end because you stupid Americans don't have broadband!" Whoever that is, you're right. The world will not end. But it will change. If the last fifteen years or so have been any indicator, what happens on the Internet and to the Internet in one geographic area can have almost incalculable changes to the rest of the world. And there is no guarantee that those changes will be good for any other part of the world. It would be a sorry state of affairs that America entered the Information Age equivalent of a Dark Age simply because one ISP went and sued the FCC because of a spat over the use of bandwidth for a program that competed with the ISP's non-Internet products. Some will doubtlessly argue that such a nightmare scenario could never possibly happen. Perhaps not to the degree that I've outlined here, but don't think for one instant that the blowback from this case won't touch anybody beyond Comcast and the FCC.
Even today, karma is a vital and active force within the Internet. What goes around does come around. And I don't like to think what will happen when it finally comes around.
Tuesday, March 23, 2010
"We Have A Turd In The Punch Bowl"
One of the many things that I missed out on while I was working graveyard shifts was getting a chance to see new episodes of South Park. Last week, I got the chance to catch a season premiere. Admittedly, I was more interested about catching the series premiere of Ugly Americans, but catching the premiere of South Park after missing the last few seasons of it was a pleasant little bonus. It didn't fail to disappoint. After all these years, Matt Stone and Trey Parker have kept their satirical edge wickedly sharp, and they pulled no punches to kick the season off. I suppose it wouldn't be a South Park episode if it didn't offend somebody. However, the offended party in this case is not who you would initially expect.
The premiere centered around Tiger Woods and his recent sex scandal. Hilarity ensued as Kyle, Kenny, and Butters were all diagnosed as future sex addicts and were stuck in a therapy group with other luminaries as Charlie Sheen, Bill Clinton, David Letterman, and Woods. As usual, the message was pretty straightforward: "Don't screw around! Be honest with your spouse! Take responsibility for your actions!" It never fails to amuse me that, as much howling and screaming as some people make about how offensive South Park is, the show consistently holds up the fundamental message that we need to be decent human beings to each other. However, the controversy concerning the premiere has nothing to do with the unflattering parody of Tiger Woods or his wife, or even the general cycle of "deny, confess, apologize" that has reached the level of cliche in the public consciousness. It appears that EA Sports has announced plans to sue Stone and Parker (or at least their studio), most likely making an argument for infringing on EA's copyright of Tiger Woods PGA Tour 11.
According to a post on Daily Informer, a source inside EA Sports has said that shortly after the episode aired, the suits at EA sat down, discussed the episode, and apparently proceeded to discuss how best to proceed with a lawsuit. At the time of this writing, there does not appear to be any official word from Stone & Parker about getting sued. My prediction: there's not a hope in hell this suit will succeed, though it doubtlessly net the legal departments involved a tidy little bundle of billable hours between the time the first papers are filed and the moment the judge's gavel comes down after the words, "Case dismissed!" finish echoing in the courtroom. Come on, if Scientology can't squash these guys, EA Sports doesn't stand a chance.
Let's take a closer look, shall we? EA Sports' only possible angle is a flimsy argument that South Park somehow infringed upon Tiger Woods PGA Tour 11, a fictitious version of which was used as a narrative device for the episode. Somehow, EA's lawyers would have to convince a judge and or jury that the scenes in the episode were representative of the actual game. Unless the developers are willing to create the kind of DLC needed to turn a high end golf simulator into a Street Fighter-esque fighting game with "Pre-Nup Power-ups" and scenes involving marital violence, Vicodin abuse, and press conferences, not even the most jaded or pop culture deprived jurist could avoid seeing quite clearly that the depiction of the game and the actual game have absolutely nothing in common. When a show regularly disclaims at the start of every episode that the presentation viewers are about to see is quite obviously a parody, and proceeds to demonstrate quite thoroughly that it is a parody, no amount of pettifogging legalistic sleight-of-hand is going to come even close to making the case reach trial. EA Sports would have no standing to bring a suit because of the depiction of Tiger Woods in the episode. Nor would they have any standing to bring a suit because of the licensed use of Tiger Woods' name or the mention of the Professional Golf Association in the title of the game. Even the mention of the title falls under the parody exceptions.
When South Park put World of WarCraft in it's crosshairs, the guys at Blizzard not only got the joke, but incorporated the title of the episode into the game as an achievement. Nintendo didn't summon the lawyers when South Park made fun of the wait involved for the first Wii systems. There wasn't a hue and a cry when Guitar Hero was spoofed. This is quite obviously the stupidest example of filing suit for no other reason than "the honor of the flag" that EA or its subsidiaries has come up with in recent memory. Somewhere, there has got to be somebody, hopefully in the legal department of EA or EA Sports, that will sit down with the suits and make it painfully clear to them that they're wasting a lot of time, money, and resources that don't need to be wasted. The only person who might possibly be offended enough to try a lawsuit would be Tiger Woods himself, and chances are his own legal advisers have made it clear to him that he's got no shot. The only thing this lawsuit will accomplish will be to add another notch, and a very high profile notch, on the belt of a show which has faced down bigger and meaner opponents than EA and won without breaking a sweat.
The premiere centered around Tiger Woods and his recent sex scandal. Hilarity ensued as Kyle, Kenny, and Butters were all diagnosed as future sex addicts and were stuck in a therapy group with other luminaries as Charlie Sheen, Bill Clinton, David Letterman, and Woods. As usual, the message was pretty straightforward: "Don't screw around! Be honest with your spouse! Take responsibility for your actions!" It never fails to amuse me that, as much howling and screaming as some people make about how offensive South Park is, the show consistently holds up the fundamental message that we need to be decent human beings to each other. However, the controversy concerning the premiere has nothing to do with the unflattering parody of Tiger Woods or his wife, or even the general cycle of "deny, confess, apologize" that has reached the level of cliche in the public consciousness. It appears that EA Sports has announced plans to sue Stone and Parker (or at least their studio), most likely making an argument for infringing on EA's copyright of Tiger Woods PGA Tour 11.
According to a post on Daily Informer, a source inside EA Sports has said that shortly after the episode aired, the suits at EA sat down, discussed the episode, and apparently proceeded to discuss how best to proceed with a lawsuit. At the time of this writing, there does not appear to be any official word from Stone & Parker about getting sued. My prediction: there's not a hope in hell this suit will succeed, though it doubtlessly net the legal departments involved a tidy little bundle of billable hours between the time the first papers are filed and the moment the judge's gavel comes down after the words, "Case dismissed!" finish echoing in the courtroom. Come on, if Scientology can't squash these guys, EA Sports doesn't stand a chance.
Let's take a closer look, shall we? EA Sports' only possible angle is a flimsy argument that South Park somehow infringed upon Tiger Woods PGA Tour 11, a fictitious version of which was used as a narrative device for the episode. Somehow, EA's lawyers would have to convince a judge and or jury that the scenes in the episode were representative of the actual game. Unless the developers are willing to create the kind of DLC needed to turn a high end golf simulator into a Street Fighter-esque fighting game with "Pre-Nup Power-ups" and scenes involving marital violence, Vicodin abuse, and press conferences, not even the most jaded or pop culture deprived jurist could avoid seeing quite clearly that the depiction of the game and the actual game have absolutely nothing in common. When a show regularly disclaims at the start of every episode that the presentation viewers are about to see is quite obviously a parody, and proceeds to demonstrate quite thoroughly that it is a parody, no amount of pettifogging legalistic sleight-of-hand is going to come even close to making the case reach trial. EA Sports would have no standing to bring a suit because of the depiction of Tiger Woods in the episode. Nor would they have any standing to bring a suit because of the licensed use of Tiger Woods' name or the mention of the Professional Golf Association in the title of the game. Even the mention of the title falls under the parody exceptions.
When South Park put World of WarCraft in it's crosshairs, the guys at Blizzard not only got the joke, but incorporated the title of the episode into the game as an achievement. Nintendo didn't summon the lawyers when South Park made fun of the wait involved for the first Wii systems. There wasn't a hue and a cry when Guitar Hero was spoofed. This is quite obviously the stupidest example of filing suit for no other reason than "the honor of the flag" that EA or its subsidiaries has come up with in recent memory. Somewhere, there has got to be somebody, hopefully in the legal department of EA or EA Sports, that will sit down with the suits and make it painfully clear to them that they're wasting a lot of time, money, and resources that don't need to be wasted. The only person who might possibly be offended enough to try a lawsuit would be Tiger Woods himself, and chances are his own legal advisers have made it clear to him that he's got no shot. The only thing this lawsuit will accomplish will be to add another notch, and a very high profile notch, on the belt of a show which has faced down bigger and meaner opponents than EA and won without breaking a sweat.
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