“Realistic” Simulations: Foreboding in Alito’s Concurrence in Brown v. Merch.?

In June of 2011, the US Supreme Court struck down a California law that wanted to prevent the sale of violent or “adult” videogames to children who did not have parental permission. Scalia wrote the majority opinion, and for him it was a mostly clear-cut First Amendment case: Videogames count as the kind of protected speech that is covered by the free speech clause, and the California law gets in the way of that free speech. Straightforward. (The two dissenters wrote separately: Thomas took up the issue of parents, minors, and law, while Breyer took issue with an apparent incongruence in curtailing the sale of pornographic magazines and films but not of potentially pornographic videogames.)

I found the concurrence by Alito (joined by Roberts) particularly interesting. Alito still thought the law should be struck down, but seemed less sure than Scalia that video games were just another medium of expression, just like books or motion pictures. After playing some violent videogames, Alito writes, “[s]ome amici who support respondents foresee the day when “ ‘virtual-reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel the splatting blood from the blown-off head’ ” of a victim.” Alito goes on to criticize Scalia’s opinion for failing to recognize differences of interaction between video games and other media.

As a Justice of the Supreme Court, Alito’s role is to look to arguments and evidence as presented. I am not so restricted. I propose three different lenses for considering Alito’s concern to evaluate whether it is justified: psychology, phenomenology, and Aristotelian catharsis.

1) Psychology. By psychology, I mean both clinical analytic psychology and something closer to neuroscience. Given the right scientific tools, the experiment is an easy one to conduct: subjects are exposed to a book, a movie, a platformed video game, and an immersive virtual-reality simulation each depicting the same act of violence. The brain of the subject is monitored (using MRI or whatever is better by the time such an experiment occurs) and the brain activity for each stimula is compared. This would, at least, determine whether there is a difference in the way the brain interacts with different media. Psychologists would also be able to observe and interview subjects to provide another means of evaluating the effects of each medium.

2) Phenomenology. Here, I mean “metaphysics through the filter of experience.” The ardent scientist might derisively call this approach “science without the hassle of experimentation.” While I think philosophy is no substitute for science, I also think science is no substitute for philosophy, and the two ought to go together as they did before the 18th (or 17th) century. The core of this approach is determining the distinctions between experience, imagination, imagined experience, and experienced imagination. I think there is a need for considerations from the field of aesthetics in determining just how we so casually mentally suspended reality to allow ourselves to be “drawn into” books, shows, plays, and now videogames. Until science can probe the brain effectively, it is here that we ask questions like “If movies and videogames become visually indistinguishable from reality, will the two media also be equally experiential?” And I think most phenomenologists (particularly Merleu-Ponty) answer “No.”

3) Catharsis. Until my last year of college, I did not know that the ancient Greeks performed their plays as part of very big festivals, a core part of which was tremendous mourning and wailing and weeping in response to the tragedy presented before them. Knowing this gives context to why Plato despises poets and playwrights, and why Aristotle thinks this is even a subject worth discussion. There are two understandings of what Aristotle meant by Catharsis in this context. One school holds that he thought it was important to let loose a torrent of emotion in the way the Greeks culturally did, and so cleanse their emotions. A different approach is that Aristotle believed emotions were to be expressed in the right way and for the right reason, and the expression of sorrow, as a community, at a tragic story, is an appropriate expression of emotion. We might ask whether hyper-real videogames are a positive outlet of catharsis, and it may be that the answer turns on the sort of videogame one plays.

Baudrillard famously addressed issues of simulation in the post-modern context. He probably argued that as we understand reality in terms of simulation, our reality becomes the simulation, and the simulation becomes our reality. For him, this was a way of understand post-modern society, politics, economics, and culture. A version of his reasoning might one day become a way of understanding our relationship with technology we used to call videogames.

The Metaphysics of the Corporation: A Nexus of Contracts.

The Supreme Court issued a total of 5 writings in Citizen’s United v. Federal Election Commission.  The metaphysical nugget at the heart of this politically charged case was whether corporations (and other legal entities without physical personhood) could claim certain constitutional rights or protections. The outcome, that a corporation could be considered a “person” and so have “free speech rights”, shocked many and was ridiculed somewhat. The core of the joke is obvious: a “corporation” isn’t even close to a “person.”

Corporations cannot be touched. They do not smile, they do not cry. They cannot get a driver’s license. They cannot go for a walk in the park. They are concepts. They exist as legal entities, as shorthand for a set of agreements. They are a nexus of contracts. http://en.wikipedia.org/wiki/Nexus_of_contracts

And yet, corporations can own assets, owe debt, pay taxes, and even die (no one escapes those certainties, right Benny F?).

So the metaphysical puzzle is presented: how do we assess the nature of the corporation’s existence? I’m interested in this question for two reasons: First, I think it is extremely similar to many of the questions of the metaphysics of cyberspace (things that appear to have ontological force without physical presence). Second, corporations and business entities are enormously important in countless ways to the developed world (and, in a different way, important to the developing world). I find it striking the Internet and the Corporation are the two most dominant forces of the 21st century and have (potentially) similar metaphysics. Politicians and jurists need to take questions of metaphysics and ontology seriously as entities and locations of legal importance become less obviously physical. When policies or rulings are handed down without proper reasoning, the door is opened for the kinds of rulings in which a person is prison is not found to be “in custody.” http://verdict.justia.com/2012/03/21/why-interrogation-in-jail-may-not-count-as-custodial-the-supreme-court-makes-new-law-in-howes-v-fields Courts are forced to work backwards from statutes and precedent to the facts before them, and if their starting point is problematic, those problems can be magnified in the court’s efforts to force the square peg (the law without proper basis or explanation) into the round hole (the facts of the case at hand).

The deeper joke is that the word “corporation” comes from Latin word “corpus,” literally meaning “body.” In one sense, the corporation is the joining together of many bodies into one unified body, and yet it has no actual body of its own. Why couldn’t the late-night comedians and pundits glom onto that hilarity? Or at least meet this level of humor:

“Corporation: An ingenious device for obtaining individual profit without individual responsibility.” -Ambrose Bierce

Are Concise and Precise Mutually Exclusive?

To be concise is to minimize the amount of time and language to communicate a concept. To be precise is to make clear the boundaries of meaning- to make it impossible (as much as possible) to misunderstand how much is covered by one’s words but also how much is not covered. It is to tie down every loose end, to anticipate and pre-emptively answer and resolve every possible question, concern, contradiction, confusion, and counter-argument. It is simply a fact that this takes more time and more language than to not do it. We can also be more concise if we take on smaller tasks: if we keep our subject matter extremely narrow, and simply cut potential areas out of the discussion as “extra-topical.”

Another shortcut is to make assumptions about what the audience simply won’t be confused about—to assume that the audience will not be misled on certain points and omit that relevant discussion.  Explanations take more space if they include proofs of the premises used in the primary argument. If we simply assert them as axiomatic and let our primary argument remain conditional upon the validity of the premises, we can save time. However, this comes at the cost that our argument is less powerful, less clear, and more open to misinterpretation and abuse.

In “Amusing Ourselves to Death” (1985), Neil Postman notes the difference in length between the Lincoln-Douglas debates (several days of multi-hour speeches) and present-day political debates (one hour, split into few-minute sound bites and slogans). Postman’s analysis is that news, social/political discussion, and other public discourses are reduced to quick, pithy sound-bites in the latter 1/3 or ¼ of the 20th century. My additional analysis is that the quality of discussions, debates, and overall understanding of issues has declined drastically. (For examples, consider 4chan, YouTube, Reddit, Facebook, or other community discussion opportunities online.)

We may see this as a tension between a cultural environment which emphasizes speed (`a la Virillo) and the slow and steady requirements of human understanding (which is unwilling to yield to cultural demands of speed). As a sped-up culture pushes for the “quick-and-easy” sound bites and summaries, areas of society that demand deeper comprehension will be increasingly at odds with the tech-culture. Law is one such area.

In law, explanations must be precise. Laws and contracts must be clear enough to be understood, and should strive to be so clear as to not be misunderstood. If law sacrifices clarity and precision, problems multiply. The grand value in a technological capitalist society is efficiency. The precision required by law can be seen as “front-loading” the efficiency because greater inefficiency results from resolving problems created by imprecise law. In this way, both precision and conciseness can be mutually exclusive yet both serve the end goal of efficiency when applied in different contexts.

In IP, Words Are All We Have.

Intellectual Property is strictly a creature of law and language- it exists only in word and in law. (Unless it also exists in ethics and metaphysics…)

Why do I keep writing about language on a blog about IP law and videogames? With most things we talk about in our day-to-day lives, there’s a tangible object that correlates to our discussion. If we argue about who owns a piece of land, a TV, a sandwich- there’s a THING that we can point to and say “THAT is what I’m talking about.” But there isn’t a physical object of “right to publish.” Sometimes there’s a contract, but the contract is only words- which brings us right back to language. The only “thing” we have is a linguistic representation of an intangible and [I argue] abstract idea.  For me, this sets IP law apart from every other type of law. And yet, IP law is most closely related to Property law: a type of law characterized by exactly the opposite features- you can always point to land, heirs, tenants, chattels and everything else in property that isn’t IP.

We don’t speak carefully about technology. We play fast and loose with our words. If I “show” a moving picture, I don’t literally reveal a DVD, videotape, or reel to people. When I listen to a CD, I don’t actually put my ear up to the disk. Rather, we watch the content on the DVD and listen to the content of CD through the use of the appropriate devices. These devices reveal the content to us that is otherwise inaccessible. This sort of language is fine for casual use, but it can create confusion when it is used to analyze more complex issues. More careful language reveals the issues at stake: the content of the media is at issue, not (usually) the physical vessels for that content.

What IS intellectual property? The performance? The idea? The sounds or notes? The pattern or choreography? None of these- it is the right to use and profit from such things. Owning IP is like owning land in that the locus of the ownership is in the right to use and deny others’ use. What is land ownership besides the right to determine who uses the land and in what fashion? Maybe it turns out that IP licensing isn’t so different from land ownership. Although we may say “I own Blackacre” without objection, what I really mean by such a statement is that “I decide who uses Blackacre and how.” Although our law does not recognize that anyone can own “The Ballad of Blackacre,” we do recognize that some entitiy may own the right to decide who uses the song and in what way. In both cases, the claim of ownership is really a claim against the world. If we balk at the abstract nature of IP claims, it may be because we do not appreciate the abstract nature of the claims we make about real and personal property.

Capitol Records, LLC v. ReDigi, Inc.: No Re-Selling Digital Material

While this case will probably never be considered a landmark case in copyright law, it typifies, for me, the kinds of new issues that arise in IP law as the world changes. It seems that an online store (“ReDigi”) attempted to sell used digital material (e.g., iTunes purchases that the purchaser no longer wanted to hear or see). A judge in the Southern District of New York ruled (last week) that this particular store, ReDigi, was a “clearinghouse for copyright infringement.”

I recently wrote about digital property, mostly with Steam’s store and service in mind. The upshot was that I worry about how much money I can invest into things I don’t “own” (in the sense that we are used to). Let me explain this further: most of the time, when we buy digital property, we actually buy a license to use the property, not the property itself. This is why it is coherent to courts to treat a physical object so differently from a digital one- the legal relationship the “owner” has with each is in a completely different category. This is what raises concerns for me- that my legal relationship with my digital property is different from my ownership over my physical property. Much of my concern is related to my assertion that more and more of our “property” will be digital in the future. As our property interests migrate to a digital world, it is deeply troubling to think that we would have a weaker grasp on our interests in the future.

Of course, the marketplace itself (independent of legal conceptions of ownership or license-ship) determines a great deal of this. After all, it is up to the record companies, development studios and distribution services to choose how to write their Terms of Use agreements. If these decision-makers become convinced that it is in their better economic interest to give a type of ownership that allows resale (and other aspects of physical property ownership) rather than the weaker licensing that many currently sell, the law need not budge on the issue of digital copyright. At least in theory, the law only identifies the correct situation, sorts it into the appropriate category, and applies the prescribed consequences. (The extent to which that is true is a subject of enormous debate, as you can imagine.) If the marketplace writes its contracts of sale in a way amicable to notions of property ownership for a world of digital property, the law need only enforce the appropriate contracts.

There is another sort of law, besides the law of the courthouse and the law of the marketplace, that bears on this subject. That is the law of the programing language itself. Part of the reason ReDigi  was decided to be infringement was that the transfer of the digital property was really a movement of a copy, not of the file itself. More abstractly, the issue the court takes with digital ownership is that digital objects do not behave like physical objects, especially for the reasons we suppose we have based our laws of ownership upon. Yet digital objects only behave in accordance with the programing language that describes them and the actions we may perform upon them. We have control over the digital landscape in which these objects exist, and we can decide (at least to a very large degree) how they behave and how we can (and cannot) interact with them.

In summary, I posit that changes in the marketplace and in programing standard practices can help consumers have more satisfying legal relationships with their digital property. The fact that these changes are available makes it all the less likely that the law will step in and protect consumers in this area (until or unless the abuse becomes excessively wanton).

Note 1: The structure of this approach, with a law of courthouse, marketplace, and programing code, is adopted from Lawrence Lessig’s “Code and Other Laws of Cyberspace” and “Code 2.0”

Note 2: The ReDigi ruling came out last week, but I was swamped with some time-consuming law school assignments and so couldn’t write this analysis sooner.

Is the Law Language or Culture?

Almost all puzzles in the field of law hinge on a question something like this, “What does that word or phrase mean?” Difficult legal questions frequently turn on whether a modifier is applied to only the first term in a list, or each term in a list. Other questions are whether a specific object in a case is included (or excluded) by a [vague] category named in a statute. (Is a butter knife a “dangerous object”? A sewing needle? A jagged piece of plastic?)

In keeping with a previous post on this subject, I posit that legal analysis is fundamentally the analysis of language and the culture of that language. The primary worry about this can be phrased as this question: Can there be objectively correct and incorrect answers in a composite analysis of culture and language? Let me illustrate this difficulty with the concepts of semantics and syntax.

As I put on my coat, I tell my roommate, “I’m going out to the store for a few things. Do you need anything?” My roommate says, “There’s no soda in the fridge.”

Did my roommate ask me to get soda? The actual words he said contain no request, command, order, or anything of the sort; he only stated a fact about the contents of our refrigerator. This is the semantic analysis: the construction of the words and their specific meaning. However, most people familiar with our language and culture easily recognize this as a casual, polite request. Obviously, his statement that we are out of soda is in reply to an inquiry aimed at finding out what we lack that I could purchase at the store. It is largely uncontroversial that he means for me to buy more soda, precise language notwithstanding. This is syntactic analysis: the implicit, understood meaning in the context of the situation.

Here’s the takeaway: neither analysis seems entirely “wrong,” and that’s deeply troubling for those who want the law to be clear and black-and-white. The semantics cannot deny that my roommate may well have meant that I am to buy soda, and yet the syntactics cannot reject the fact that my roommate’s language contains no sort of request-in-fact for more soda. This leads to a problem in law: if a statute can be understood in two very different ways, and neither can be said to be wrong, how can we know that the law actually is? We are unwilling to accept that there is no “right” answer for the meaning of the law, because this leads us to the possibility of having two, inconsistent sets of laws depending on the interpretation of the statutes.

Remixed Culture

The Eiffel Tower, Gangam Style remixes, and the protest marches of the mid-20th Century are all pieces of culture. They represent people in a robust way—their dreams, their identity, their values, how they spend their time, how they see themselves, how they want the world to see them—, and it amazes me that those kinds of things can be represented in a photograph or 3 minute video. Entertainment media is fascinating to me because of the way it captures and represents people, and at the same time shapes them as they react to the captured representations of themselves. Whether they represent struggles, joys, triumphs or defeats (or any combination of events and the feelings that accompany them), our pieces of culture form a patchwork of symbols that tell the story of our civilization.

The law must grow in a way that allows that patchwork to continue to be stitched, even if it sometimes wants to stitch itself in ways we did not think the laws of physical space would allow. With so much of our culture digitally recorded, we can rework, remaster, remix, rewind, review, and all but redo the pieces of our culture. The process and tools of this cultural reworking become their own cultural artifact, symbolizing a culture of reflection, creative generation, and communal response.

The Legal Analysis is this: works derived from copyrighted works, if they use protected elements of the work, can be infringements. The 17th Chapter of the United States Code (a massive collection of federal laws passed by congress) addresses copyright and describes derivative works. However, a landmark 1991 Supreme Court case (Fiest v. Rural) is famous for establishing originality as the key and core precept of copyright. Recent developments in remixing and layering expose the tension between the case law and the statutory law. If remixes use copyrighted material, they can be considered derivative works. However, if remixes are original works, they are subject to their own copyrights. A 1994 Supreme Court case dealt with the creation of parody songs, and is noted for its emphasis on whether the new work is “transformative.” One question that can be posed is this: “Is a remix or mashup transformative or is it derivative?” Seeing some uses of technology to create new works as transformative rather than derivative can abate much of this discord. Generally, the two tools I think have the best potential to help resolve this tension are the Public Domain and Fair Use (which permits transformation of works). By expanding the meaning, significance, and use of these tools, the law can be made friendly to 21st century techno-culture while retaining the basic principles of copyright law.

The Social Analysis is this: When Time magazine named YOU the person of the year, they weren’t merely being pithy or lazy (benefit of the doubt being given). They were trying to capture this new era of Web 2.0, user-generated content, and remixes. They wanted to signal a shift in our culture. We are moving away from the old days of established entities determining who will be the next superstar and toward a future in which blogs and vlogs or a webseries may simply “catch on” and gather tens of thousands of subscribers with millions of views.

Yet as technology gives artistic, political, and social voice to so many new people, I worry that any kind of constructive progress is hindered by the sheer quantity of new material. If millions of people can easily and immediately tweet, blog, comment, post, text, e-mail, message, etc. a CEO, president, senator, secretary, etc., is democracy really served? If there are millions of blogs out there, and even hundreds which I might find greatly important and personally enriching, do I have much hope of finding them, much less reading all of their content? Tagging, categorizing, and searching are all useful tools, but they can only take us so far… we need something better if we are to get the most out of this Era of User Generated Content, the Digital Age, Web 2.0, YOU.

Technology and history have conspired to create a culture delighted by blurred distinctions, reflexivity, and overlap. The remix, the mashup, and other layered works are the cultural artifacts of the upcoming generations. The law must grow very carefully if it is to mete justice here, walking a delicate line between a communal culture of layered uses of ideas and a moral and economic requirement for proper respect for ownership of those ideas being layered.