AMVs for pirates and video poets alike.

Warning: this blog posts contains information about a "fan" subject. Non-fans may become confused, bored, or annoyed if they attempt to read it. Any claims of illegal activity are completely accidental and most likely the result of typos.
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Anime Music Videos (AMVs) are generally short video clips taken from an animation (most often a Japanese animation) and set to a song chosen by the creator of the video. Sometimes an audio track of a stand-up comic is used, or the creator will write their own parody. If you look at the case

LUTHER R. CAMPBELL AKA LUKE SKYYWALKER, ET AL., PETITIONERS v. ACUFF-ROSE MUSIC, INC then you will find that, with some reasonable restrictions, portions of other copyrighted works may be fair to use even in parodies that are commercial in nature. It makes sense to allow a degree of protection to parodies because by their very nature they often criticize accepted ideas, and thus contribute to adding variety and debate to the marketplace of ideas, even as they do so in a comical manner. Campbell v. Acuff-Rose Music applied specifically to a song, but it's reasonable to believe that images of copyrighted animation should be treated similarly to copyrighted audio tracks. Right?

For the young fan, the legal boundary lines are far from clear, and the incentive to even try to discern them is generally low. Must somone contribute original content for an AMV not to violate copyright law? (I am speaking about distributing the AMV, and thus the images and sounds contained, not just possessing them.) I point to a very popular and widely-shared AMV, Tainted Doughnuts. This work was put together by some talented editors who edited scenes from two distinctly different animated series together seamlessly. One anime is about a fugitive gunslinger, and the other is about bounty hunters, and both storylines take place in a future setting where Earth has become a wasteland. Though they did some extra editing so they could throw in some inside jokes (you'd have to be a fan to pick up on them) almost every frame of footage is taken from one animated series or the other, or combinations of the two (see the scene where the persuer slides over the roof of the car). The song playing in the background is native to neither series, and the lyrics, when translated, turn out to make no sense whatsoever in light of the story being told by the animation... but the song was written by somebody. Is this AMV a work of art, a triple violation of copyright law, or both?

The truth is... I'm not sure. Most of the people my age who share and distribute AMVs are even less sure than I am. If YouTube doesn't pull the video, then can we assume that we're in the clear? Or are we simply assuming that we won't be punished, but it might be not legally sound and we could have our posting priviledges stripped at any time? The young people who should be affected most by laws concernng sharing video and music often have very little reliable information to guide them. Vaguely, we are aware that court battles are being fought over digital rights management and copyright law... so that means, to us, that nobody is sure what is and is not allowed by the law. Are we to stop having our fun while we wait for the law to sort it out? Some may. This is known as the "chilling effect," and it's threat to free speech has been noted by Supreme Court Justices in opinions covering topics from libel (i.e. NY Times v. Sullivan) where eople are not forced to silence themselves in their criticism because they might have to prove their statements in court, to modern anti-SLAP laws that grant citizens the power to fight back against lawsuits that exist purely to harrass and stifle free and uninhibited debate.

The first AMV I ever saw was shown to me by my friend ________. (I'm afraid to say because I don't want to bring legal trouble upon him.) He had downloaded this video, which combined footage from a then-popular anime Dragonball Z (we were young... okay? Plot or not, it was fun to watch) with the song Kryptonite from 3 Doors Down. AMVs are often used to express some idea or feeling... they may contain biographies of a fictional character's life told through important scenes, or they may summarize an important chapter of growing up, or they may simply express sorrow, or joy. This AMV in particular expressed pure aggression. Some sound effects from the original footage were left in to superimpose over the music itself. You could hear the crackling of lightning and the crunch of footsteps before the first solemn chords of the instrumentals rolled through the speakers. The AMV contained no fabulous editing like Tainted Doughnuts... it was footage and sound... but I liked it, ______ liked it, and he saved it to his hard drive. It was worth holding onto. A few weeks ago, I checked... the video had been forcibly muted by YouTube. I see now that it has re-appeared in its full form, which is actually a little disappointing because I was prepared to show you the long stream of angry comments of people fed up with those trying to censor it. YouTube had posted a message saying the video contained a track about which there was a dispute, and so the track had to be removed.

Now click this link, and turn sound on. This "amv" is nothing more than a still frame, and a song taken directly from a soundtrack. (Go ahead and click- it's a pretty song, sung in German). It is still the combination of an image and sound... but trying to defend it as a creative work in a court of law would likely be futile because there is not no significant "added value." Where along the spectrum does illegal distribution of music begin, and fair use end? I do not feel my examples are weakened by the re-appeareance of the Kryptonite video precisely because it DID re-appear. What was "unacceptable" a couple of weeks ago is now apparently legitimate.

The song expresses a sentiment about brotherly love. If someone places a picture of their own beloved brother, killed overseas in a war, it is very possible that the results would be very stirring for anyone who knew the person... it would be speech.... ideas. As it stands now, it is thinly-veiled music theft to make the video publicly available. To make that distinction- between art and piracy- one must regulate based on content, and that is presumed unconstitutional if the government does it. Yet there is no compelling explanation for YouTube's restriction of popular videos other than that the company is seeking to avoid legal actions taken against it.

The widespread acceptance of music piracy among my generation is largely a reaction to the apparently silly, capricious, and possibly constitutionally unsound rules that are thrown before us as law one day and altered dramatically the next. Many have simply stopped caring what is technically legal and what is not- if it doesn't "hurt" anyone, then we go right ahead and do it. Video and music is now digital, and we can acquire and distribute this digital data through the internet at no cost. Whether you are receiving benefits (such as faster download time credits) from distributing or getting something for free by receiving, the obvious choice seems to be to "share" rather than "buy" as long as you can find what you are searching for. There seems to be a one-in-a-billion chance that a large, soulless recording company will try to take someone to court and make an example out of them but our generation makes use of the "it can't happen to me," philosophy so we do what we please anyway. It never seems like an ethical battle of right and wrong because everyone else is doing the same activities! Our individual contribution to whatever monetary losses the music industry is suffering seems insignificant in our perspective.

The industries have ideal systems that they are attempting to put into place. Apple, for example, wants customers to buy their computers, their ipods, their ipod accessories, and music that contains their copy-protected technology. Apple hardware uses Apple software, and if the portability of the system is restricted enough, Apple computer can still boast about the remarkably low virus rates among their system, and consumers can still feel trendy and smug about their purchases. Yet what if someone _wants_ to do something outside the system? What if they want to use a different media player on their ipod than what Apple produces, or they want to store their copy-protected music on files of a different format?

The case of Odioworks v. Apple (http://www.eff.org/cases/odioworks-v-apple) will hopefully be a good first step toward striking a better balance than what we have now. A wiki website contained a discussion by users that included exchanging ideas of how to get past Apples coding in ways that would allow Apple producst such as the i-pod to interoperate with software NOT selected by apple. Because the information on each individual ipod player is owned by the owner of the player, including software locks, the owners of apple products have a right to alter and view the data stored on their player in any way they please. Apple, perceiving a threat to their Apply-only system, demanded that discusions related to hacking the ipod, etc, be taken down. The wiki website complied under protest, and is now suing for damages, and so that the court can tell them (and their oppressors) EXACTLY where their rights, and the rights of their users, lie in this respect. It is disturbing indeed that Apple not only feels it has the legal power to keep people from performing hacks on products they have sold, but that it also has the ability to threaten people with legal action for even TALKING about how to perform such hacks!

If the courts were to, theoretically, rule that Apple in fact CAN sue people for talking about ways of exploiting their products in ways other than envisioned in Apple's money-making strategy, then that would mean the government's action is setting up a system of prior restraint, and Alexander v. the United States tells us that prior restraint is unconstitutional!

Although I am unlikely to find the time to invest in making my own amv, I would be interested in reading online discussions in which people tell how to, for example, get around the protection encryption of DVDs so that you can rip footage directly from a high-quality DVD to be used in an AMV. If speech concerning ways to defeat encyrption is ruled not to be protected under the First Amendment, I believe the topics will still emerge, but fearful websites will periodically purge them, so the quality of debate, as well as the growth of any libraries of knowledge on the subject, will be stunted.

Elsewhere in the world of fighting the "system", a landmark case, OPG v. Diebold, will be referenced for years to come in copyright law. A California court has determined that Diebold "knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights." They sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents that revealed flaws in Diebold's voting machines. Vulnerabilities in the voting machines were VERY important to public interest, and yet the company was trying to use threat of legal action to keep people from even talking about it. The Electronic Fronteir Foundation stepped in to help and have won the case. They proudly proclaim on their website the outcome.http://www.eff.org/cases/online-policy-group-v-diebold
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Outcome: In addition to creating the first caselaw applying 512(f) of the DMCA to remedy abusive copyright claims under the DMCA, Diebold subsequently agreed to pay $125,000 in damages and fees.
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Protection of confidentiality, and thus uninhibited speech, took a bit of a hit in California recently, unfortunately. In First Cash v. John Doe ( http://www.eff.org/cases/first-cash-v-john-doe ), an anonymous internet web board poster criticized a Texas-based chain of pawn shops and the company sought a subpoena to force Yahoo to reveal the identity of the poster, on the grounds that he "may have been" an employee that signed a confidentiality agreement. In Branzbeurg v. Hayes, it was was found that there is not a Constitutionally-protected privilidge that allows reporting agents to refuse subpoenas to reveal the sources of their information, yet that is not to say that states could not provide protections through legislation. In this case, it seems that California did not have an applicable law to protect the John Doe's confidentiality on its face, so the EFF, acting in the interest of the John Doe, attempted to have the subpoena request ruled a SLAPP.

The EFF failed, and the subpoena was not blocked. I feel it is terrible that all it takes is a company to say that a critic "may" have been an employee, and they can force an exception of someone else's First Amendment and Fourteenth Amendment rights- in this case Yahoo's right NOT to speak about the identity of anonymous posters.

I leave this week's post by likining my confusion of the legalities and liabilities of spreading AMV's with the famous case of Zacchini v. Scripps-Howard Broadcasting Co. The First and Fourteenth Amendments do not create Constitutional protections for those who record a performer's act and then distribute those recordings for their own profit. I admit that I have never actually "watched" many of the AMVs I search for online. If I'm in the mood to hear a particular song, I do a YouTube search for the name of the song, followed by "AMV" and I generally can expect that I'll be able to hear the song I want, and not a fan of the band singing the song themselves. I'm getting the entire performance -the entire product- through a secondhand source and for free. I may never even witness the "added value" put into making the song into an AMV. If Zacchini had gone the other way- if there WAS complete Constitutional protection, then would all AMVs be protected to be hosted by websites without fear of lawsuits? And in doing so, would copyright law be completely destroyed?

I'm not sure that the answers to these uncertainties will ever be known to the music-sharing community. Rumors have taken the place of knowledge, and you'll see people claim that they are not committing piracy because they "delete or copy the songs after three days", etc. The law may exist to give record companies the ability to punish, but as of right now it holds no power to DETER. The majority of those sharing AMVs are foggy as to their legal rights, just as those wrapped up in DRM court cases are not quite certain of the outcome. And thanks to having being in the fog for so long, it is likely that many music and amv-sharers... simply won't care what side of the law they fall on. It's not really worth the effort... because "nobody" ever gets caught.

....
http://w2.eff.org/IP/P2P/MPAA_v_ThePeople/

... we hope.

Hacked version of my earlier post- hacked like a zombie.. .yeah...

As I woke up this morning I realized that I had slept through my alarm- perhaps because I had tried to get by with an hour and a half of sleep, or perhaps because I was put under the spell of an evil turtle king. I quickly threw on my clothing, gunned down a hoard of rampaging zombies, beat up an old lady and a hooker for their cash, and raced down the steps to the basement of the computer lab. The internet didn’t want to work, but I shot bubbles out of a cannon into a series of matched lines, and made it with almost an hour and a half to spare to be able to begin writing this blog about banning video games while asserting that they do not have an impact upon the course of my life.

The Resident Evil series did not need a gimmick to be popularized- it is one of the older franchises on the market whose success has spawned comic books and even a bad movie. I, unfortunately, have never had the fortune of playing a RE game, so most of what I know comes from hearsay, but it is the most successful zombie-killing game series of all time. When Capcom announced that it was going to release RE 5 the gaming public went all atwitter with excitement. Though the news did titillate , it did not generally appeal solely to the prurient interest, so under ******** its creators had not yet forfeited their First Amendment protections. The game promised new enemies, new weapons, new items, new environments, and amazing graphics. And then it happened. They released a trailer http://www.gametrailers.com/player/22801.htmlat E3, which for those of you who won't play with anything fancier than flat rocks on a water's surface, is major annual event in the video game industry where companies show off their up-and-coming creations. Don't spell check up-and-coming, I'm in a rush here and I'm not even sure the internet will work when I try to save this. :P Go ahead and watch the trailer right now. It will be important from here on out.


What did you see in the trailer? Was it... BLATANT RACISM?!?!?!??!?!?! No, I didn't think so. Most fans were really excited at the idea of playing this game, and wanted to continue the storyline of the characters that they had guided through the first four games main games, as well as the spinoffs which aren't conveniently numbered for easy google searching right now. Wait! HERE WE GOhttp://residentevil.wikia.com/wiki/Resident_Evil_Wiki. Okay- so there are seven "main" RE games. Anyhow, the game franchise is well-established. It does not need a cheap scandal to sell. This is important to understand.

As soon as the trailer hit the internet, rampaging idiots began to scream racism. In the Resident Evil games, the "zombies" are actually humans infected with a terrible virus that can have its roots traced back to the corruption of a powerful international organization. In the newest installment, the virus has taken hold in Africa, and that's where the protagonists are fighting. This means that the zombies they are killing are Africans. This means that many of them are black, and thus white children are being trained to hunt down and destroy black people. I don't have a source for that- I just picked it up from reading internet arguments about this topic. On one side were people either calmly or furiously trying to explain that the game is not racist. On the opposing side were people who were either shaking their heads and sighing at the ignorance of the gamers, or screaming profanities (well, text screaming) about the white racist crackershttp://www.capcom.co.jp/ responsible for this game. Thishttp://www.gamepolitics.com/2007/08/01/african-womens-blog-critical-of-resident-evil-5-trailer is the most persuasive argument for the "RE is racist and bad" side I could find, and is generally not typical of the rants. Demands to have the game banned started appearing, and thus a First Amendment issue worthy of a blog post was born! There are currently NO video games banned in the United States, and no outcry was made to have an RE game banned when the violence took place in Spain against... that's right... Spanish zombies. Resident Evil 5 is STILL not going to be banned in the United States because even if it was deliberately racist, descrimination against racism is viewpoint discrimination, and that is presumed unconstitutional when performed by the government. The best angle of attack would be for the anti-RE people to have the game banned under a Violent Video Game Law, but ENTERTAINMENT SOFTWARE ASSOCIATION; VIDEO SOFTWARE DEALERSE ASSOCIATION; AND ILLINOIS RETAIL MERCHANTS ASSOCIATION v. ROD BLAGOJEVICH struck down one such law as unconstitutional, and I believe that such laws will continue to be struck down because they SHOULD BE ruled unconstitutional. Video game makers are not responsible for violence in society (see Joe James v. Meow Media, Inc) but even if you believe that video games are speech, and speech expresses ideas, and those ideas could influence people to do things that they wouldn't normally do, then the games are still protected by the First Amendment. Thought control is not a governmental duty. Yet.


Defenders of the game claim that because the game is set in Africa, it would be racist NOT to have black zombies in the game. Arguably, racists should be pleased that RE zombies are more intelligenthttp://images.roosterteeth.com/assets/media/9_49e0ed80d4d76.jpg than other zombies in previous RE games due to improvements in technology, AI algorithms, and a need to make the game more challenging for experienced players. Some opponents of the game respond that in order to avoid being racist, the game makers should have provided the option of playing as a black man instead of a white man. While good in theory, the RE folks spent YEARS tailoring their storyline to be what they wanted it to be, and they should not be forced to alter the identity of characters that have been in the storyline since the original RE. You are on a mission to save your sister. You came from the same parents. You have skin color as your sister. These are things that must be accepted. If you were some random person instead of one of the original protagonists of the RE series, then the story would suffer for the political correctness, as it is very unlikely that a random person would be in African combatting the evils of a corrupt corporation unless they had been involved in the events of the previous RE games. Why then could the game makers simply not have made some of the original characters black? I like moush's post to answer the question:

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http://www.destructoid.com/anthropologist-resident-evil-5-racism-claims-are-silly-123992.phtml
moush at 03/06/2009 23:48

Of course it's racist, everyone knows Japan hates black people. The real question is why does it matter?

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The real answer is, of course, that when the original http://upload.wikimedia.org/wikipedia/en/4/45/RE1_screen.jpgRE game was made, the creators had to deal with greater limitations on graphics capability and storage allotment, and it just was not practical to generate skin tones for multiple races.


If the games somehow incited people to violence- directly, not indirectly, then they could be banned. Fighting words - and if video games express ideas, then they could fall under this category- were narrowed in scope by The UWM Post, Inc. v. Board of Regents of University of Wisconsin System. The University of Wisconsin tried to restrict speech that

1- was racist or discriminatory

2- was directed at an individual

3- was demeaning of the race, sex, religion, color, creed, sexual orientation, national origin, ancestry or age of the individual addressed

4- created an intimidating, hostile, or demeaning environment for education, univerrsity-related work, or other university-authorized activity.


THEIR ATTEMPTS WERE STRUCK DOWN. Fighting words need to

1. Be directed at the person of the hearer

2. Naturally tend to provoke

3- Create an immediate, hostile reaction, an immediate breach of the peace
By their very design, RE games are so awesome that there will BE no breach of the peace, because people will sit on their butts and play them all day long.



It is important for me to note that, technically speaking, RE games are not "zombie" games but "horror thrillers." This may save me from being flamed by avid/rabid fans who have beaten the game and are now exercising their First Amendment rights by blogging on the internet. There are many ideas that I have yet to explore which I may post about later in the comments section, but right now it is 9:28 a.m. and I really need to publish this post. :)


****NOTE: BLOGGER IS NOT ACCEPTING SOME OF MY LINKS FOR A WEIRD REASON SO I'M PANICKING AND PASTING THEM DIRECTLY TO THE TEXT, THEN REFORMATTING ALL MY TEXT. I AM SORRY FOR THE INCONVENIENCE.

Invasion of Polling Place- April 7, 2009

I've been trying for slightly over two hours now to find the exact distance that political signs must be spaced from the entrance of a polling place on Election Day in Champaign County. I've found a list of polling places, including ones that prohibit political activity on their property while they are being used as polling places. I would estimate from the signs I saw around Snyder Hall that the magic number is about 100 feet from the entryways of a polling place.

I only saw one entity that blatantly ignored these restrictions. Stacks of political materials of a biased nature were distributed inside the very room that held the voting booths. Long after the polls had closed, I stopped by to investigate, and took a sampling of the propaganda as evidence. I could take three large steps from the stack of papers and then touch a voting booth with my foot. While this may not be a very technical measurement, I do believe that three of my strides do not reach 100 feet. Who was responsible for this irresponsible distribution of political material? The Daily Illini, of course.

The First Amendment says "Congress shall make no law abridging the freedom of speech, or of the press." The interpretation of this has varied depending on the situation, the era, and the judge, but generally it is believed that our Democracy depends on free and uninhibited speech so that people can have the best possible chance of forming opinions and acting upon them in the electoral process. Which then is more important, the rights of the voter, or the rights of the speaker? If the freedom of "speak as you will" and the freedom of "vote without harassment" come into conflict with each other, should we say that voting is not as important as discussion of how one ought to have voted?

Writing a blog between the hours of 8 pm and 9 am has been hazardous to my academic performance. I find that sometimes I am in such a hurry to let my thoughts flow out through my fingertips that sometimes they splash around a bit and what had been a crystal-clear yet fluid stream of thought becomes muddy and turbulent. Further complicating the issue tonight may be the contempt I have held for the Daily Illini since the day I read the article with a picture captioned along the lines of "Catholics Worship Painting of Pope." Perhaps I am over-eager to find fault with an entity that has villainized middle-aged balding white men in seats of wealth and power. As an engineering student, I hope someday to become a middle-aged man in a seat of wealth and power, and I may well be balding and white at the time. Judge for yourselves then what you feel is right, as I trust the cases I will present you with may yield more persuasive power than the announcement of my ire.

In the case of Mills v. Alabama (1), the United States Supreme Court reversed the conviction of a newspaper editor that had been convicted of the crime of publishing an editorial on Election Day that urged people to vote a certain way. Alabama law at the time read:


Section 285 of the Alabama Corrupt Practices Act, Ala. Code Tit.17 §§ 268-286 (1940), provides that: It is a corrupt practice for any person on any election day to intimidate or attempt to intimidate an elector or any of the election officers; or, obstruct or hinder or attempt to obstruct or hinder, or prevent or attempt to prevent the forming of the lines of the voters awaiting their opportunity or time to enter the election booths; or to hire or to let for hire any automobile or other conveyance for the purpose of conveying electors to and from the polls; or, to do any electioneering or to solicit any votes or to promise to cast any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on the day on which the election affecting such candidates or propositions is being held.


Laws against political speech on Election Day were generally meant to be for the good of the voters, and were thought to be neutral to all sides participating in elections. However, they are still laws prohibiting speech based on content, and thus can only be allowed in very a very narrow context. The Supreme Court struck down the law as "an obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press because it provided criminal penalties for publishing editorials which silenced the press at a time when it could be most effective." (1)

A lot of scenarios have occurred which fouled up U.S. elections. Intimidation of voters, voter fraud, fraud by officials, drunken and disorderly voters, invasions of voter privacy, voter confusion, unfair treatment of voters (biased literacy tests), discrimination against minorities, buying votes, loud noises, ballot shortages, even catastrophic automobile accidents and violence against voters have interfered with elections. However, many Americans feel that we can improve upon our past, and honestly believe that, no matter how cynically we may view the people actually in power, our modern elections are fair and peaceful, and the voting of each citizen is a sacred act. We do not wish to be bullied into voting (2) or not voting. We view tainted elections with contempt.

The case for political speech around the ballot boxes has already been fought and lost, but it was a tough fight. In Burson v. Freeman (3), a regulation restricting campaigning with 100 feet of the entrance to a voting location was challenged as a violation to the First Amendment. The U.S. Supreme court was split in their decision. It is clear that the purpose of free and uninhibited speech is to affect political change, and that speech was clearly at its most effective at a location where voting is actually taking place. However, the fundamental right to cast a ballot free from fraud won out, and the law was upheld. Concern was expressed that the law not be expanded to reach too far, else speech become restricted needlessly. Even with this ruling, free speech must only be restricted on very narrow conditions.

If legal, a polling place is a wonderful place to spread your message. I particularly remember the long line of voters during the November 2008 election that wound back and forth through my residence hall. Nobody wanted to give up their spot in line, and after the official time for voting ended, but everyone knew that they would be allowed to vote as long as they were already in line, there was no way anyone was going to walk away when they were so close to participating in a historic event. And that is why, for all practical purposes, everyone in line was a captive audience. If someone were to come and start spreading campaign messages, they would be forcibly removed from the premises. Yet, we were bored standing there in line.

Yesterday, the Daily Illini was able to take advantage of the wait to vote. They had set up their newspaper right in the same room as the voting machines. Whether you picked up the newspaper or not, the headline was bold and plainly visible.

"UI alumnus challenges incumbent for assessor"

The largest photo on the front page was the candidate the Daily Illini editors were (not officially) supporting for assessor, nine times the size of the photos of the other candidates. Another newspaper, the Morning News-Gazette was also available for free, but after scanning the pages for more material I discovered that the only mention of politics was information about where to vote and when polls closed, not specific information about candidates on the front page.

The main article complains that it has been 20 years since Champaign voters have had any choice other than Brian Christie, and that there has been a trend in which properties were being "inaccurately valued," according to their secondhand source through the News-Gazette, Debby Auble. The Daily Illini happily prints that "the high-end homes in the community were really grossly under-assessed." They also point out how modest and middle-income homes are being "grossly over-assessed" according to one person's opinion. The Daily Illini does not say, but the people whose words appeared on the front page said, that the incumbent has been really passive and that there are statistics that show the bias (magic words! Yes! Everyone is opposed to bias!!) in the system. The Daily Illini then goes on to say students should remember that they are affected by the situation, because the incumbent's unfair evaluation of property leads to higher taxes for their landlords and thus higher rent for them. When the Daily Illini tried to get their source to say that the brave young graduate of the University was fighting an "uphill battle," their source acknowledged it. She also calls the News-Gazette's support of the incumbent "very odd." There is little defense of the opposing viewpoint because "Christie could not be reached for comment." I am sorry to say that a great deal of my fellow students would consider themselves informed after reading this horsewash. I am also amazed that a candidate running for re-election would be unavailable to a student newspaper unless they were not given adequate time to respond. When the journalist finished speaking to people unsatisfied with the incumbent, did he then try to call the assessor's office after business hours, listen to the answering machine, and then hang up? How many days did the reporter attempt to contact Christie?

The Daily Illini has a right to post slanted stories that leave students with a false sense of being informed. However, when they use a story supporting a particular candidate as their main headline, they are essentially a campaign flyer that has snuck inside neutral territory.

Within the folds of the paper, on the "opinions" page, were a set of opinions that never disagreed with each other. Jordan Harp spoke out against the tax sales increase, yet no opinions were printed supporting the increase. Harp suggested that students were not affected by property taxes because they did not own property, but that they were going to be badly hurt when those in power (anti-incumbent) snuck the sales tax hike in while students weren't paying attention. The main article was anti-incumbent because property taxes were unfairly high to the common person, and the editorial was anti-incumbent because property taxes should be raised instead of sales taxes. Whether you are for or against raising property taxes, the Daily Illini will fault you because you're an old foggy.

Unfortunately, the Daily Illini does not seem to have a link to this final bit of published opinion, but in the Letters to the Editor section, a snippet entitled "Vote Rex Bradfield mayor for Urbana" had no countering letter supporting any other candidate, and again spoke out against the proposed sales tax increase.

All of these things may seem trivial, but a polling place is a special location, and should be set aside from biased interference of the outside media. This newspaper was political in nature, supported specific candidates, and was set up in a rack that people may have had to stand next to for several minutes while they waited for their turn to vote. It is now almost 4 am and I have decided not to thoroughly explain the psychological theories of the primacy effect or the recency effect, but I assert that the very presence of this material can affect the outcome of the election and is inappropriate. At the very least, the percentage of ambivalent or careless voters who would have chosen randomly (or not at all) on topics they new little about will have the shady words of the Daily Illini editors, who managed to get in the last word, despite county ordinances.

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1) MILLS v. ALABAMA
No. 597
SUPREME COURT OF THE UNITED STATES
2)Vicente Cevallos FRAUSTO, Plaintiff, v. Herbert BROWNELL, Attorney General of the United States, Defendant
No. 18245
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION
3) CHARLES W. BURSON, ATTORNEY GENERAL AND REPORTER FOR TENNESSEE, PETITIONER v. MARY REBECCA FREEMAN
No. 90-1056
SUPREME COURT OF THE UNITED STATES

Copyrighted computer viruses and hopefully the death penalty

Computer viruses are often bad. I know, it's a shocking claim. No, don't tell me to calm down! I mean it!
I have on my computer, even as I type this message, computer programs that I do not wish to have running, and which I cannot remove. I know that I also have programs running which I do not know exist (think about it) nor do I know how to remove them without being able to identify them. The constant need to expand my paging file, however, is all the proof I need of their existence. They are lodged upon my disk space and even in my active memory, and I hereby demand that the authors of the software remove them immediately or begin paying me a nominal monthly fee of $159.99 for storage.

...

Dang. It looks like I don't have a large enough legal team for that demand.

I have invested a lot of valuable resources into combatting unwanted software on my own system, and on the system my parents have at home. Fortunately I have a few tools - computer systems knowledge, experience, wisdom, patience, and Google- to help me in my fight, and I've had moderate success, but it's really infuriating that I should have to fight this hard when I did not consent to have (most) of the software placed on my computer to begin with. A little over a year ago, I consented to having adware temporarily installed upon my computer so that I could "legally" download and watch a certain anime. Hey- they claimed it was legal, and I had little incentive to argue the point. Anyway, I read the EULA. I read the whole boring, technical, dull EULA. I knew exactly what I signed on for, and I knew that the company promised the software could be fully uninstalled, including the advertising software. I uninstalled that program within a week of installing it, because it did not work properly. The media player is gone, the adware is not. To this day I receive random popups advertising anything from Dodge pickup trucks to websites where I can date wrinkled 40-year-old married women cheating on their spouses. Oh boy. The pop-ups come at any time, and I have had some of the sleazy ads present themselves on the foreground of my monitor while I've had guests in the room. The recommended solution to my problem: pay someone to professionally wipe out my hard drive, and start again from scratch. I honestly believe that Dodge should hav to foot the bill.

I've used numerous programs designed to remove malicious software, some of which are considered to be silver bullets by many. I'm still looking for one that works for my problem. I've gone into spooky portions of my computer that I did not fully understand, brought up documentation of the file system, and crossed my fingers and prayed as I deleted mysterious files with cryptic names, hoping that I was killing the problem and not my operating system.

Unfortunately, the website that originally inspired the rant shown above is now in a state of 404, however, I wanted to let you know that various companies and individuals have been suing people who make antivirus software for interfering with their buisiness. The link I provide you with points to a case where the antivirus did not specifically warn users before removing content Zango had placed on their computer. I think I've just found another powerful antivirus to try to out on my computer, yet the idea that the anti-virus software does actions without consent is frustrating. It is as though one must enlist one virus to combat another. If I take the time to read through a EULA, then shouldn't my time be rewarded by software tha does what it says it does, and does not do what it does not claim to do? As my ranting continues, I am becoming more and more sympathetic toward Intel's plight in the Intel v. Hamidi (1)case. Supposedly, all of these companies that are sending me popups are trying to communicate with me. I would like the opportunity to communicate back to them, yet I do not feel that a "right to access" has been set up to allow me to trash their servers, nor am I so sure my response would not cause me to face prosecution for obscenity. Back to the focus, these companies are hoping that if they can apply enough pressure through legal action, they can force the antivirus folks to safelist any software that they make, allowing them to act without restraint upon user's systems.

I read yesterday about a case(2) in which a technician was hired to perform a software-related service for a company. He did his task, but then inserted a conditional statement into the code that would force the software to stop working after a certain number of uses. This would force the client to return and pay him for additional services to fix the problem. The judge in the civil case expressed that he felt the conduct was probably criminal in nature. Perhaps the man should have counter-sued, claiming that asking him to remove the conditional statement was interfering with HIS business interests. He certainly could demonstrate loss of revenue associated with fixing the problem properly!

What is my point and how does any of this apply to the First Amendment? Sony. Patriotic nerds have been speaking out against DRM for a while now. Some say that the right to share music is part of what it means to have a right to free speech. Others argue that DRM is ineffective, that it stifles creativity, undermines innovation, and even violates the copyright agreements put into effect when consumers purchase CD's in the marketplace. And there is a growing group of people who simply want to have their hardware back. Some of the Digital Rights Management software that Sony installs onto your computer when you use their CD's is "masked" so that anti-virus software is unlikely to detect and remove it. Quoting from the Electonic Frontier Foundation:

The software also transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits -- even though the EULA states that the software will not be used to collect personal information and SunnComm's website says "no information is ever collected about you our your computer."

The software has many of the same properties as the notorious rootkit viruses. Through my experience trying to take adware off of my computer, I have learned that these are particuarly nasty infections, and often require system-specific methods to eliminate, if they can even be eliminated at all. In addition, Sony's software creates new gaps in the security systems of infected computers. The discovery of the rootkit-like properties in their software should have caused Sony to immediately take action to undo the damage it was doing. Thomas Hesse, President of Sony BMG's global digital business division, stated, "Most people, I think, don't even know what a rootkit is, so why should they care about it?"

I believe the rant at the beginning of this blog post hint at a few reasons why someone should care about rootkits. To demonstrate to the good man Hesse the problem, I suggest that he allow me access to his garage. I will take a mysterious, sticky substance and smear it across the nice paint job of his shiny new car. Then I will claim the sticky substance does no "damage" because if he is somehow able to remove it there will be no damage to the vehicle itself. I will dismiss any claims he makes that any attempts to remove the sticky substance will almost certainly result in damage to the paint of the car, because the substance I placed there simply added to the value of the vehicle. It did not take away the paint. His clumsy attempts at removal will take away the paint.

To their credit, the people at Sony have begun to take some action- yet it is the sort of slow, ineffective action that one can expect from a company with powerful lawyers. They have produced an uninstaller program to remove the DRM software, yet analysts are warning that the uninstaller actually creates an even larger hole in system security compared against the problems of the DRM software. The uninstaller does not even manage to uninstall the software completely.

When you combine the three facts that
1) The software is not readily removable
2) the software creates gaps in security and degrades system performance
3) the software is installed on a victim computer EVEN IF they click "NO" on the EULA

you may reach the same conclusion I have. Sony's actions are as criminal as those of Donal Lewis (2).

All of this because Sony and other companies are trying to protect their financial interests by preventing music piracy. Copyright laws are important, very important, to encourage innovation and creativity. Even with all of this ranting, I do not agree with those who feel that music piracy is protected by the First Amendment. I feel that piracy is illegal and should remain illegal.

Patent law is also important, I believe. A man named Ho Keung Tse is suing several companies who use DRM software he claims he has a patent for (3). The irony is too much for me to handle. The case is still not settled- it has been tied up for years. Tse urged for swift action to prevent these companies from using the software in question until a verdict had been returned, but his request was denied. Judging from some of the language used in the footnotes (at one point, Tse's approach is called "bizarre") it does not seem as though the man is as thoroughly versed in American law as the combined legal teams of those he is sueing. He will likely lose. The plaintiff's argument that his monetary losses would be incalculable if use of the software in question was not stopped was dismissed. This argument was dismissed, yet the record companies' argument that incalculable damage was being done by people sharing music files they claim to have proprietary rights to is taken seriously.



I realize I've been a bit wordy in this blog, so I will sum up my main points:
1. Viruses are bad.
2. I want to have control over my own system.
3. I am angry that anti-virus makers are being sued by companies that don't want their junk ads blocked.
4. Sony should be held criminally liable for installing unremovable software onto computers even after the user refuses to accept the terms of the EULA
5. I don't like the ad-hoc approach to law, and find it pitiful that filesharing sites had to be shut down while the courts decided their fate, but Apple and Sony are still permitted to use DRM software while the court is still considering what to do about Mr. Tse's claims.
6. If anybody knows a really good antivirus program, please contact me.
7. If I have to pay for an antivirus program, I want the people who have been sending me advertisements to pay the bill.


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1. Intel v. Hamidi. (A direct link to LexisNexis would not work here, yet I credit them as my source)
2. Werner, Zaroff, Slotnick, Stern & Askenazy, Plaintiff, v. Donald R. Lewis, Defendant.
Index No. 104232/ 89
CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY
155 Misc. 2d 558; 588 N.Y.S.2d 960; 1992 N.Y. Misc. LEXIS 459

3. HO KEUNG TSE, Plaintiff, v. APPLE INC., et al., Defendants.

Let's all be thankful the United States isn't Iran anymore

An American spy has been captured by the Iranian authorities, after being apprehended, at face value, for illegally purchasing alcohol. And by "spy" I actually mean "journalist"- and she's being held without charges right now, which I know must be terrifying to her family, because Iran has sporadically refused to acknowledge even having her in custody, but particularly because of the fate of another reporter who fell into the hands of the authorities, and never lived to see freedom again. We must bear in mind that the death IS being treated as a homicide... even if nobody has actually been punished yet. Roxana Seberi, the captured journalist, reportedly had been gathering information in Iran even after her press card was revoked according to Iranian officials.

Now is the time to shake our heads and tell ourselves how wonderful we are to have a free, unthreatened media in the United States. Undoubtedly, we assure each other, Iran is a barbaric land ruled by a despot who is attempting to squash potential political uprising by first squashing reporters from Western nations, which may spread dangerous ideas of freedom amongst the people. I give you the example of an article by Steve Watson and Paul Watson, who cite their sources so well that I felt compelled to give them credit for doing some of the footwork for me, rather than take their sources without my thanks. If they were not protected (1) from persecution for seditious libel, they may have thought twice before speaking up about the various ways our government has been conducting espionage in Iraq for years now. According to journalist Seymour Hersh, American special forces have been crossing the border and conducting secret operations with groups that could reasonably be considered terrorist organizations against Iran's government, in attempts to undermine the government. Beautiful! Making accusations like that using anonymous sources that he cannot be forced to name! The very existance of Hersh's writings at once demonstrates the freedoms Americans enjoy as well as the need to use those freedoms to keep watch on the deceptions of own government (theoretically fiercely protective of those freedoms).

Iran does not have our First Amendment, nor our Fifth Amendment, so we must not view any of their actions or restrictions as though their government is violating something that WE agreed upon and hold sacred. (Ignoring international law for the time being) It makes sense- GOOD sense, to want to lock up "reporters" gathering information in your nation when you are on the brink of war. It does not make sense to give guarantees of anonymity to anyone who speaks to a reporter, or to grant Iranian citizens protection against charges of seditious libel. The United States has openly said that it wanted to win the hearts and minds of the Iraqi people. Well... if we're so close to going to war with Iran, then it's quite reasonable to suspect that the United States may be planning on beginning a propaganda campaign in Iran even before the first shots have been fired. It wouldn't even have to be effective propaganda- the presence itself of an organization within Iran speaking out against Iran's government and making accusations of illegal activity would signal that the leadership is not able to effectively suppress dissent in times of national distress. We already play with acts of war by sending unmanned drones over Iranian airspace, but shooting down their drones when they enter Iraqi territory and leaving them the belittling choice of admitting to wrongdoing or explaining that their technology is so woefully inferior to ours that they cannot properly control their aircraft.

Hersh, in an interview with CNN, compares the situation in Iran now to the U.S. interference in Afghanistan depicted in the movie "Charlie Wilson's War." And this, at last, takes me exactly to the comparison I want to make. Charlie Wilson's War depicts government deception in an extremely positive light, showing how political figures operated outside the rules for a cause that was just, and perfectly in line with what was for the good of America. The government does not feel threatened by the movie, and its makers have not been persecuted. Shall I now point to an Iranian political film that was persecuted recently? Nay. I point instead to "The Spirit of '76",(2) a film which was banned in the United States during World War I because it had the potential

Therefore, as I say, this is no time or place for the exploitation of that which, at another time or place, or under different circumstances, might be harmless and innocuous in its every aspect. It is like the "right of free speech," upon which such great stress is now being laid. That which in ordinary times might be clearly permissible, or even commendable, in this hour of national emergency, effort, and peril, may be as clearly treasonable, and therefore properly subject to review and repression. The constitutional guaranty of "free speech" carries with it no right to subvert the [**7] purposes and destiny of the nation.

In addition, this may, by his own admission, knew that these things -- the bayoneting of the babe and the like -- had been severely criticized [*949] and were inhibited. He knew that objection had been made to them. He knew, just as well as he knows we are sitting here now, that the private presentation of this film on last Tuesday morning was for the purpose of seeing if there was anything objectionable in it. To fit it for such private presentation it was gone over by him with a fine tooth comb, no doubt; but immediately thereafter a sedulous effort was indulged in by him to insert those things which would tend to "excite" and to create a prejudice against Great Britain. This demands an inquiry into the ultimate motives and purposes of this man, and no doubt justifies other and different action against him. But in any event, referring to the special problem now before us, and considering only the harm not to come to us, I feel that I can do no less than to say that, so far as it is within the power of this court, this thing has got to stop.

Goldstein, responsible for creating this film, was sentenced to ten years in prison. The judgement was later affirmed by a higher court.

In times of tension and suspicion, governments take action that those in positions made safer by time or by distance may look upon with contempt. Let us not dwell on constructing an image of a foreign government as vile, nor should we grow too cynnical of the government of our own people without purpose. If you seek a conclusion from me, you may have it, but my point is ambiguity itself. All actions have their contexts. In the coming months, when some rally against action in Iran and others for it, consider that the more often a man stands on the fence, the more often he gets the best view of both sides.

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Note: Some of my links were to LexisNexis, which may not work for all. I have added notation for reference.

1.NEW YORK TIMES CO. v. SULLIVAN
2. UNITED STATES v. MOTION PICTURE FILM "THE SPIRIT OF '76"

Let them twist in the wind... or you know... flourish.

In America, we've more or less staked our future on the "marketplace of ideas," where free and open debate flows and sometimes offends. Those who can back up their words with well-thought out, reasonable arguments have a better chance of making an impact on the market than those with weak, unsupported claims. Once in a while a bad idea will endure much longer than it ought, but it is my judgment that such ideas are "bad ideas," and clearly the opinion is not shared by those who perpetuate them. Eventually, we have faith, the unworthy will be weeded out through natural selection.

A recent post by "Zoevenly" railed against Joel Stein's back-page essay in Time Magazine. Joel also believed that if left alone, things will work out for the best, but his essay was directed toward government interference in the housing market. Zoevenly interpreted his essay as nasty, calling people who bought homes during the housing market idiots and comparing them to small children. She uses several emotional appeals, which I intend to elaborate upon in future posts, so will skim over now. The point is that she (either deliberately or unintentionally) misinterprets some of the subtleties of his argument, focusing on the harshness of his criticism and apparent lack of empathy for those hurt by the collapse of the housing market. She takes a neo-Liberal stance, viewing government as the caring father who should rush its wounded daughter to the hospital when involved in a catastrophic accident, even if the accident resulted from the daughter's foolish actions. Stein does not see government as a father, but as a meddler, but Zoevenly sees Stein as a know-nothing, exclaiming in the final portions of her blog that he had not been reading such-and-such articles, and that anyone who knows anything agrees with her, yadda, yadda...

Although Stein's arguments were ungentle, they've found a receptive audience in me, one member of the larger audience, and even though another member of the larger audience, Zovenly, finds his remarks offensive, the rightful punishment for his remarks are only the loss of readers and the criticism of other individuals. The government is not going to step in and punish him for his point of view.

A recent political cartoon in the New York Post depicted two police officers moments after shooting a crazed chimpanzee to death. The caption read "They'll have to find someone else to write the next stimulus bill." The reference is to the recent attack of a chimpanzee which tore part of a woman's face off and had to be gunned down, a crazed chimpanzee which arguably could have written a stimulus package whose level of coherency would match that of the package put together in Washington. It was a political cartoon, meant to be a little bit bawdy, but strike its point candidly. Unfortunately, it missed its mark. Monkey or an ape imagery has been used throughout American history to demean whomever we hope to demean, such as the enemy during a war, or even the President when he's unpopular. Many have interpreted the comic as making a direct reference to President Obama, and as monkey imagery has been particularly popular with anti-black racists, the New York Post set itself up to be hammered by anyone who wanted to take a swing at them.

I was surprised and a bit impressed at the way the editors chose to handle the situation. Yes, they wished to address the cries of racism, but their response was not purely backpedaling. Instead, they explained the original meaning of the comic and apologized to those who were truly offended, yet at the same time took the opportunity to re-emphasize their viewpoint:

"It was meant to mock an ineptly written federal stimulus bill.

Period."

The New York Post also refused to offer any apology to those who had "had differences with The Post in the past - and [saw] the incident as an opportunity for payback."

Refusing to make a complete apology is risky, and could have negative repurcussions. The New York Post could lose even more public support, and thus lose readers, and thus lose revenue. In the same way Stein put his ideas up to compete in the marketplace of ideas, they choose to let their viewpoint battle against the views of those who want them to fall flat on their face. If I were to mention now that it is the federal government's sacred responsibility to step in now and make SURE that the New York Post suffers even further for its controversial cartoon, you probably would tell me that I am off my rocker and should go write an economic stimulus plan.

Al Sharpton has demanded that the FCC "re-examine" waivers to its media ownership rules that allow Rupert Murdoch to own two newspapers (the New York Post and the Wall Street Journal) and two television stations (WNYW and WWOR) in the New York areas. This neo-liberal plan of changing the rules because you want to punish specific content was ruled to be unjust in Texas vs. Johnson.

Sending in the government to stifle offensive speech is NOT the best way to run a democracy. In this case, the speech wasn't even intended to offend the group of people it offended. True, it would offend Democrats, but it was meant to be a political attack, not a racist attack against blacks or any other ethinic group. If the New York Post begins to become a racist newspaper that depicts the death of a popular President, then the New York Post will suffer the consequence of losing its customers in the marketplace of ideas. However, let the economics of ideas decide the fate of the paper. If the FCC is called in to destroy anyone who says something that MIGHT be considered racist and/or offensive, then speech will become stifled. Even hate speech must be tolerated if we are to have free and full discussion, but in this case this is free and full discussion that is being falsely branded as hate speech so that it can be suppressed!

Rupert Murdoch has issued an apology, accepting responsibility for the printing of the cartoon and attempting to mend the hurt feelings. He says that after speaking to others about this, he has gained a better understanding of the hurt caused.

A controversial piece of speech, presented in a privately-owned newspaper has led to discussion and, for at least one man, a better understanding and increased awareness of sensitivites. Perhaps Senator Gillibrand (D) was mistaken when he said that this type of speech, "serves no productive role in the public discourse.” It obviously got people talking about issues that are important to them. That's an important enough role.

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This is my first blog entry.