The Richard Prince - Suicide Girls Circus

Appropriation artist Richard Prince is in the news again, this time because one of the subjects of his appropriation is appropriating back. But is this re-appropriation fair use or could you be guilty of copyright infringement for reusing work someone borrowed from you?

by Mark Meyer

The Richard Prince circus is back in town. Arm-chair legal analysts rejoice!

Under the big top: ring leader Richard Prince, notorious appropriation artist, whose itchy feet keep him returning to the same dog and pony show every few years. At his side, our first-of-May act, Selena Mooney, aka Missy Suicide, of Suicide Girls fame, whose Instagram photos were among the work Prince appropriated in-whole, without permission, for a new show at the Gagosian gallery. Prince’s images, which consist of screen shots of other people’s Instagram photos enlarged to 4x5 foot inkjet prints with a single banal comment by Prince, have reportedly sold for $90,000.

In response Mooney produced her own prints, identical in every way to Prince’s except for an additional, equally banal comment. She is offering them for peanuts - $90.

The question of day:
Could Richard Prince’s work be considered fair use while at the same time Selena Mooney’s print of Prince’s appropriation, whose primary element is her own photograph, be copyright infringement? It seems crazy, but the fair use provision of copyright is a side show of its own made of contradiction and legal grey areas where judges have almost complete freedom to decide what is and isn’t fair.

Some background

A single sentence in Article 1 of the Constitution empowers Congress to create copyright legislation:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

This clause not only empowers congress to create copyright and patent law, it states explicitly why it must do this: to promote science and art. Courts noticed early on that while copyright does a good job protecting the rights of creators, it can also be used to stop innovation, prevent legitimate expressions like parody and criticism, and interfere with education; in other words, it’s possible for copyright to prevent the very ‘progress of science and useful arts’ is was intended to promote. This is why we have fair use.

Fair use is an attempt to limit copyright’s ability to quash legitimate expression. It is an exception to the monopoly granted to creators which in certain situations allows protected work to be used without the consent of the copyright owner. Although the common law history of fair use is long, it wasn’t codified until 1976 and even then the law simply restated loose judicial practices rather than carving out a precise definition. Because of the nature of fair use and the constantly changing media landscape, a precise, mechanical definition is neither possible nor desirable, leaving both those seeking protection from copyright infringement and those seeking refuge in fair use in an unstable and uncertain legal environment. The statute lists a few non-exclusive examples such as criticism, comment, and news reporting followed by four factors that a court should consider when determining if a use is fair:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors are not exhaustive; courts are free to consider other factors when considering a fair use defense and, since the 1994 landmark Supreme Court case of Campbell v. Acuff Rose Music, courts have focused heavily on whether the use is transformative, or as the court stated: “to what extent it is…altering the original with new expression, meaning, or message.” The discussion of whether or not a use is transformative is normally within the context of factor one. In many cases since Campbell, it has overshadowed the other factors by a large margin often allowing both commercial use and the use of complete works if the use is deemed transformative.
 
Richard Prince

As an appropriation artist, Richard Prince repurposes the creative work of others and depends heavily on fair use. In 2013 he (more-or-less) won a widely-publicized case against Patrick Cariou whose work he used with slight alteration. Because of the nature of the case, factors 1 and 4 received the most attention from the court. Despite several instances where Prince used Cariou’s photographs in whole, the court discounted factor three and found (citing Bill Graham v Dorling Kindersley) that copying the entire work “is sometimes necessary to make a fair use of the image.” Factor two also received little attention because when considering the nature of the copyrighted work courts usually consider whether the work is mostly creative or mostly factual, with creative work enjoying the most protection. Cariou’s work was creative, a fact not in dispute. In the end, once the court decided Prince’s work was a transformative use of Cariou’s images, little else mattered.

Although his latest work adds practically no alterations to the original images, it is quite possible, if not likely, that a court will see his recontextualization of these Instagram images as also transformative. By taking work out of the ephemeral context of Instagram, displaying it as large prints in a high-end gallery, and asking patrons to view them as fine-art he has followed a long and (now) respected artistic tradition that includes work from Marcel Duchamp, Andy Warhol, Jasper Johns, and Robert Rauschenberg. This change of context may be enough for a court to decide that he has altered the original lnstagram posts with new expression, meaning, or message. Additionally, it is very unlikely that his work has any effect on the potential secondary market value of the Instagram images he used.

What about Selena Mooney’s prints — are these also fair use?

If we look at Mooney’s prints through the same perspective as the Cariou court, the answer is probably no, this is not a transformative use and is therefor not a fair use. Richard Prince’s appropriation, if fair use, establishes its own copyright protection, and if Mooney’s re-appropriation is not fair use, it is copyright infringement. A bizarre, but real possibility.

Although the media has focused attention on Prince’s single comment on each photo and many have concluded that this is the primary vehicle for Prince’s transformation, it is a minor detail compared to the change of context.

While Prince’s use of Mooney’s photos adds new and significant context, Mooney is simply selling copies of Prince’s work with no additional contextual commentary. The prints are the same size and medium — they embodied the same idea. Like Prince, Mooney has added a comment to the print, but this not as significant as many claim. Although the media has focused attention on Prince’s single comment on each photo and many have concluded that this is the primary vehicle for Prince’s transformation, it is a minor detail compared to the change of context.

When determining whether a work is transformative, courts have asked whether a work “merely supersedes” the original or adds something new. Regardless of what you think of Prince’s aesthetic, it is very difficult to argue that he has not added something new by producing this work. As the court noted in the Cariou case:

For a use to be fair, it “must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.”

Prince’s work may meet this standard, but it is unlike that Selena Mooney’s does because her prints seem to be designed for one purpose and one purpose only: to supersede Prince’s work. Because of this a court would likely find that factor one works against a fair use defense for her.

The court in Cariou also looked closely at factor four — the effect of the use on the potential market and value of the original. Prince’s appropriation of Mooney’s images is unlikely to have any effect of the market for this work. If anything, it may improve it. In deciding this factor the Cariou court cited another case involving appropriation, Andrea Blanch v. Jeff Koons:

We have made clear that “our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.”

Our court has concluded that an accused infringer has usurped the market for copyrighted works, including the derivative market, where the infringer’s target audience and the nature of the infringing content is the same as the original.

Practically speaking there is no secondary market for Instagram photos. The works are published on a platform that is free to view and in most cases open to the public. There is nothing for Prince to “usurp.” This isn’t true with Mooney’s prints, however. There is a strong market, willing to pay close to $100K for Prince’s work and Mooney has explicitly set out to undercut this market. It is the very definition of usurping. The court did recognize that Cariou and Prince serve very different strata of the art market, with Prince’s shows boasting a-list celebrities and million dollar sales, while Cariou barely sold anything. This lead them to conclude that Prince’s appropriation was unlikely to harm sales of Cariou’s work. Mooney might make the same argument — that her buyers and Prince’s buyers are separated by such an immense economic chasm that her sales will have little to no impact on the value of his work. She would probably be correct, but her explicit marketing of these prints as cheaper alternatives to Prince’s will make this a difficult argument to swallow.

Both Prince and Mooney seem to be taking a light approach to the absurdity of the situation and neither seems interested in legal action. But the irony that fair use might allow one to be sued for reproducing a work consisting almost entirely of their own work is too rich not to explore and it’s a good example of the difficult, amorphous concept that forms the foundation of fair use. As bystanders it is a shame that neither party is a little more litigious because we all love a good courtroom circus and as a legal funambulist Richard Prince is hard to beat.

Fuck Being PC: Why I’m Offended By How Easily Offended You Are

Zara Barrie

I’m a girl who possesses many a trait — but “intolerable” is not one of them.

I’m a fairly accepting soul and consider myself extra plugged into the sensitivities of those who surround me, however, there is a stealth handful of specific breeds holding court in this great kingdom of the human race, who attain the remarkable ability to turn my usually set-at-room-temperature blood to that of a hot and dangerous boil.

At the top of this list (not the very top, that’s reserved for racists, rapists, religious extremists and the like) are the politically correct (or PC) and the oh-so-easily-offended.

Look, I’m not here to validate the actions of the cold-blooded bullies of the world, who get their twisted rocks off by name-calling and scattering the world with their mission of hatred. I DON’T condone the excessive homophobia, racism and sexism that tarnish this precious planet.

As a girl who has been called at least a third of the names in the thick book of bashing, I truly understand the intense pain derived from hatred masked as humor.

See — I’m not talking about the true bigots of society (but eagerly will if prompted). What I’m referring to is the humorless, over-censored, painfully serious, so-very-privileged, obnoxiously educated, hypocritical members of the bourgeois, who can’t take a single f*cking joke.

I don’t know about you, but I’ve HAD IT with the bleachers; I want to play in the game.

Just because I didn’t study political science in an ivy-league institution (or go to traditional “college” at all for that matter) doesn’t mean I DON’T HAVE SOMETHING TO SAY.

So listen sweet collegiate, the outspoken game isn’t just for the PC club. I’m easily offended by how easily offended you are. Here’s why:
You’re more focused on the terminology than you are on the ISSUE.

If you put but a single spoonful of energy into the actual issues at hand that you so graciously pour into “terminology,” we could have a real, live conversation and get somewhere. I agree words can be powerful weapons, but they will never carry the immense weight of actions.

The time you spend arguing about the “politically correct” way to refer to homeless people could be better invested into actually volunteering your time to help them.

You leave us out of the conversation.

I see you — throwing around exceedingly LARGE and pretentious words the masses don’t understand, attempting to intimidate anyone who isn’t fluent in “pompous” from joining the conversation.

I know what you’re doing; you’re using BIG words as a method to posture — it’s your brilliant game plan to avoid doing the hard work and answering the hard questions.

Why don’t you attempt to have a real conversation with real people? How can you fight for “the people” when you don’t speak in a language they understand? Instead of fighting your opponents on the way in which we should educate our children, try talking to one.

You are so quick to judge, but never dare to create.

I can’t imagine how draining it must be to take offense at all the mind-expanding forms of art that beautify our city. Art is intended to invoke feelings (remember those?!). It’s the opposite of literal and not intended to be intellectually broken down.

It takes a lot of courage to create anything in this age of political-correctness. Art is founded from the most vulnerable part of an artist’s heart, and it’s hard for us to tap into our artistic flow when paralyzed with fear of offending you.

It’s ironic that you have so much to say about everyone’s art, but never have you had the courage to expose your work to the critical masses.

You don’t understand the cultural value of comedy.

Comedy has the incredible ability to address subject matters that are notoriously difficult to discuss. Issues like racism, sexism, disease and the general angst of being a HUMAN are brought to the surface. It clears the static air and grants us more space to breathe freely.

Comedy plays a vitally important role in our culture. Without comedy, there would be endless elephants in the room, and we would all feel painfully alienated in our struggles.

Comedy holds a mirror to society and gives us the invaluable ability to laugh. Laughing is the most therapeutic activity we can engage in.

You underestimate comedians (like you do most artists). As long as their material isn’t rooted in hatred, trust that they know what they’re doing. They’re the great observers of the world; not only do they hold up a mirror to society but they allow us to gaze into it.

You only care about the opinions of people exactly like you.

You PC people are an extremely tricky, (often deceptive) breed to figure out.

While you’re so often the ones lecturing about the utmost importance of “freedom of speech,” you’re also the first to shoot down the opinions of any brave soul who dares to express a point of view that isn’t cohesive with yours.

It’s hypocritical to proclaim freedom of the voice, and then ruthlessly bark at those who say things you dislike. How can you fight for the first amendment when tuning out the awesomely diverse voices serving as the soundtrack to our planet?

You spend more time on enunciation than you do on education.

If I say something dramatically un-PC (which truth be told, is all the fucking time), and you find yourself reeling with extreme offense, why don’t you kindly talk to me about it? I’m an open vessel and genuinely care to know why I’m bothering you so.

EDUCATE ME, brothers and sisters (I’m on YOUR side). I’ve never walked in your shoes.

Before you write me off as worthlessly ignorant, take the time to tell me your story. I DO want to hear it (just be open to mine, too).

You pick all the wrong battles.

Utilizing your time and energy on your tirade against the young women, who take up space in the media, is not the best use of your limited time. I constantly see PC people on the television railing against Lady Gaga.

What the f*ck is that all about? Lay off Ms. Gaga, she’s an artist fearlessly expressing herself. You should encourage her to express herself, since you’re such a vehement proponent of free speech.

And aren’t there bigger fish to fry? What about these increasingly relevant issues: HIV/AIDS, teen pregnancy, youth suicides, child abuse, homelessness, disease, babies born to addiction and the heaps of general global anguish?

You’re simply not fun.

Anyone who puts such a filter on the world, anyone who is so deeply offended by the very BEST things life has to offer (comedy, art and gluten to name a few), anyone who is so humorless and easily rattled — is simply NO FUN.

I hate to say it, but you’re the ultimate buzzkill; you’re mean and NOT invited to my party. And in a cruel, cold world — we need to PARTY.

Feminists want us to define these ugly sexual encounters as rape. Don’t let them.

We need to stop prosecuting bad behavior as rape.

By Cathy Young

There was the time when, 19 and naive, I was guilt-tripped into entirely unwanted physical intimacies with a much older married man. And the time, three or four years later, when I went to visit an on-and-off long-distance boyfriend and quickly realized that it was over for me — but he assumed we were still on, and I didn’t have the nerve to say no. And the time I told a man, “Look, I’m not going to sleep with you,” and it was taken as, “Try again in a couple of hours.” He did, and it worked.

When they happened, my views of these encounters ranged from “it was a mistake” to “it’s complicated.” They still do — even though, these days, we are encouraged to reinterpret such experiences as sexual violations. To many feminists, stories like these are evidence of a pervasive, misogynistic rape culture. “Kids see movies where there’s an aggressor who gets pushed away, but keeps trying until the girl relents,” advocate, author and filmmaker Kelly Kend writes. “. . . This is a rape dynamic that has been played off countless times as just how it works.” Canadian feminist author Anne Thériault laments “the still-pervasive and very flawed idea that if she doesn’t say no, it’s not rape” — clearly referring not just to attacks involving violence or incapacitation (for which few would demand a verbal “no” as proof of rape), but encounters in which a woman yields to unwanted overtures, like I did.

This isn’t just feminist theory; it’s having an impact in the real world. Consent-education programs on college campuses, from Columbia University to the University of Texas at Austin, are increasingly adopting the “yes means yes” approach. But this crusade against “rape culture” oversimplifies the vast complexity of human sexual interaction, conflating criminal sexual acts such as coercion by physical force, threat or incapacitation — which should obviously be prosecuted and punished — with bad behavior.

Was I a victim? Even in the first incident, in which the man knowingly pressured me into something I didn’t want, I could have safely said no to him. Despicable behavior is not always criminal, just like getting guilt-tripped into giving money to a freeloading friend is not robbery.

In the second instance, it would be an infantilizing insult to deny my responsibility for a mutual misunderstanding. In the third, what happened was not only consensual but wanted; my initial “no” was sincere, but it was mainly an attempt to stop myself from acting on an attraction against my better judgment.

Besides, I know that sometimes the roles have been reversed. There was the ex-boyfriend I thought I was seducing in the hope of getting him back — only to realize, the one time he finally said no harshly enough, that it had been more pressure than seduction. There was the man who told me it was too soon for us to get involved and said, more than once, “We shouldn’t be doing this” the evening we first went to bed. If I were to claim victimhood, I would either have to admit to being a perpetrator as well or fall back on a blatantly sexist double standard.

Forty years ago, feminist reformers successfully challenged the discriminatory treatment of rape complainants, from the requirement of physical resistance to condemnations of a woman’s “unchaste character.” Feminist advocacy also deserves credit for clarifying that forced sex is always rape, even in a relationship. (I am talking here about being forced by physical violence, restraint or threats, or being subjected to sexual acts while physically helpless.) But the anti-rape activism that emerged in the 1990s and has surged on college campuses and on the Internet in recent years goes far beyond that. Today, it not only embraces an absolutist version of “no means no,” in which any hint of reluctance must halt further attempts at sexual intimacy; the movement also insists that only a clear (and sober) “yes” means yes.

Sometimes, the movement’s supporters claim that the new rules amount to little more than common sense: Don’t have sex with someone who isn’t a willing partner. In practice, a male student at California’s Occidental College was recently expelled for having sex with a woman who was willing and enthusiastic, but apparently too intoxicated to think clearly.

Others champion a far bolder vision. Thériault writes that we must “raze” nearly all our cultural beliefs about sex and “create an entirely new foundation” — built on the understanding that consent must be explicit and almost certainly verbal, not simply a “yes” but an “ongoing conversation.” Increasingly, this is also the approach adopted by consent-education programs on college campuses. A bizarre “consent porn” video created as an educational aid shows make-out sessions proceeding to a constant mutual refrain of “Is this okay?”; the apparent idea is to show that “consent is hot,” but the result looks more like a particularly tacky parody.

Affirmative-consent proponents often assert that the new rules will make for better sex by encouraging people to talk about what they like in bed. Such arguments have unpleasant overtones of “we decide what’s best for you”; Kend explicitly states that if you cannot have “an adult conversation” about sex, “you shouldn’t be having it.” The meddling turns starkly authoritarian when the “encouragement” involves potential penalties — expulsion from college or even criminal charges if affirmative consent becomes a legal norm.

Meanwhile, there is little regard for the preferences of people who like intuitive give-and-take rather than requests and directions. Sensual, playful or raunchy bedroom talk is very different from compulsory questions checking for a clear signal that you’re not crossing a line. Reluctance to engage in frank sexual communication is treated solely as a puritanical hang-up rather than a valid desire to preserve some spontaneity or dignity. And the wrong kind of communication, such as persuading an initially hesitant partner, is equated with sexual assault.

Despite its scorn for reticence, the new sexual revolution has a deep puritanical streak. Consensual sex is viewed as always under control, the result of a rational, fully autonomous choice. In this vision, there is either unequivocal “enthusiastic consent” or reluctant submission. In real life, though, there are many other possibilities.

You could agree to have sex to please your partner, despite not being in the mood, and get enthusiastic later. You could be sexually eager but emotionally ambivalent, or vice versa. You could be torn between passionate desire and ethical or practical reasons not to act on that desire. You could get drunk to quiet your scruples, or you may hope to be coaxed into surrendering to temptation. (Obviously, “coaxed” does not equal “physically overpowered.”) Some of this behavior may be unhealthy or immature. But if it involves consenting adults — who can refuse sex without reasonable fear of harm — those adults should be free to make mistakes.

Ultimately, ensuring that sexual consent is always free of pressure is an impossible goal. Consent advocates already fret that even an explicit “yes” may not be given freely enough. A series of educational campus posters includes the warning that “if they don’t feel free to say ‘No,’ it’s not consent”; a Canadian college campaign cautions that consent is invalid if it’s “muted” or “uncertain” rather than “loud and clear.”

This advocacy creates a world where virtually any regretted sexual encounter can be reconstructed as assault (unless the person who regrets it initiated it while fully sober) and retroactive perceptions of coercion must always be credited over contemporaneous perceptions of consent — even though we know that memory often “edits” the past to fit present biases.

In theory, this regime is gender-neutral. Yet real-life cases like the one at Occidental show a strong presumption — openly acknowledged by a dean at Duke University — that in a heterosexual encounter, it’s the man who must gain consent and bear the blame if both partners are intoxicated. Whether cloaked in traditional chivalry or feminist rhetoric, it’s still a paternalistic double standard.

It is time to rethink this crusade, which criminalizes bad or uncomfortable sex, thereby trivializing actual sexual violence. Anti-rape efforts should focus on criminal conduct and law enforcement responses. In college communities, young people who feel wronged in sexual situations that stem from misunderstanding, pressure or insensitivity could be offered support without being treated as “rape survivors”; remedies might include mediation or joint counseling, clearly inappropriate in cases of sexual assault. Sexual ethics based on honesty, respect and communication can be discussed without turning every lapse into a crime.

The quest for perfect consent is profoundly utopian. Like all such quests that ignore human realities, it points the way to dystopian nightmare.

Big Mouth Strikes Again

By Simon Pegg

From the wonky opening that brought you “Fuck you Star Trek fans” and “Phwooar, Princess Leia”, comes this … “Nerd culture is the product of a late capitalist conspiracy, designed to infantalize the consumer as a means of non-aggressive control.”

It has come to my attention (thank you google), that the excellent website, Io9 picked up on some controversial comments I made to the Radio Times, which can be summed up in the above headline. Now, maybe I was being a little bit trollish, I can be a bit of a Contrary Mary in interviews sometimes. When you do lots of them, you get sick of your own opinions and start espousing other people’s. Having said that, the idea of our prolonged youth is something I’ve been interested in for a very long time. It’s essentially what Spaced was about, at least in part.

One of the things that inspired Jessica and myself, all those years ago, was the unprecedented extension our generation was granted to its youth, in contrast to the previous generation, who seemed to adopt a received notion of maturity at lot sooner. The children of the 70s and 80s were the first generation, for whom it wasn’t imperative to ‘grow up’ immediately after leaving school. Why this happened is a whole other sociological discussion: a rise in the student population, progress in gender equality, the absence of world war; all these things and more contributed to this social evolution. What fascinated Jess and I was the way we utilised this time. For Tim and Daisy, not having to grow up in the way their parents did, simply meant a continuation of their childhood. For Daisy, it was the pursuit of her girlhood dreams and fantasies. For Tim, he channeled his childhood passions into his adult life, cared about them as much, invested in them, the same level of time, importance and emotion. His hobbies and interests defined who he was, rather than his professional status.

In the 18 years since we wrote Spaced, this extended adolescence has been cannily co-opted by market forces, who have identified this relatively new demographic as an incredibly lucrative wellspring of consumerist potential. Suddenly, here was an entire generation crying out for an evolved version of the things they were consuming as children. This demographic is now well and truly serviced in all facets of entertainment and the first and second childhoods have merged into a mainstream phenomenon.

Before Star Wars, the big Hollywood studios were making art movies, with morally ambiguous characters, that were thematically troubling and often dark (Travis Bickle dark, as opposed to Bruce Wayne dark)*. This was probably due in large part to the Vietnam War and the fact that a large portion of America’s young men were being forced to grow up very quickly. Images beamed back home from the conflict, were troubling and a growing protest movement forced the nation to question the action abroad. Elsewhere, feminism was still dismissed as a lunatic fringe by the patriarchal old guard, as mainstream culture actively perpetuated traditional gender roles. Star Wars was very much an antidote to the moral confusion of the war, solving the conundrum of who was good and who was evil. At the heart of the story was an ass kicking princess who must surely have empowered an entire generation of girls. It was a balm for a nation in crisis in a number of ways and such was that nation’s influence, the film became a global phenomenon.

Recent developments in popular culture were arguably predicted by the French philosopher and cultural theorist, Jean Baudrillard in his book, ‘America’, in which he talks about the infantilzation of society. Put simply, this is the idea that as a society, we are kept in a state of arrested development by dominant forces in order to keep us more pliant. We are made passionate about the things that occupied us as children as a means of drawing our attentions away from the things we really should be invested in, inequality, corruption, economic injustice etc. It makes sense that when faced with the awfulness of the world, the harsh realities that surround us, our instinct is to seek comfort, and where else were the majority of us most comfortable than our youth? A time when we were shielded from painful truths by our recreational passions, the toys we played with, the games we played, the comics we read. There was probably more discussion on Twitter about the The Force Awakens and the Batman vs Superman trailers than there was about the Nepalese earthquake or the British general election.

The ‘dumbing down’ comment came off as a huge generalisation by an A-grade asshorn. I did not mean that science fiction or fantasy are dumb, far from it. How could I say that? In the words of Han Solo, “Hey, it’s me!” In the last two weeks, I have seen two brilliant exponents of the genre. Ex Machina and Mad Max: Fury Road, both of which had my head spinning in different and wonderful ways and are both very grown up films (although Max has a youthful exuberance which is nothing’s short of joyous, thanks George Miller, 70) I’ve yet to see Tomorrowland but with Brad Bird at the helm, it cannot be anything but a hugely entertaining think piece.

I guess what I meant was, the more spectacle becomes the driving creative priority, the less thoughtful or challenging the films can become. The spectacle of Mad Max is underpinned not only multiple layers of plot and character but also by an almost lost cinematic sense of ‘how did they do that?’ The best thing art can do is make you think, make you re-evaluate the opinions you thought were yours. It’s interesting to see how a cerebral film maker like Christopher Nolan, took on Batman and made it something more adult, more challenging, chasing Frank Miller’s peerless Dark Knight into a slightly less murky world of questionable morality and violence. But even these films are ultimately driven by market forces and somebody somewhere will want to soften the edges, so that toys and lunch boxes can be sold. In that respect, Bruce Wayne’s fascistic vigilantism was never really held to account, however interesting Nolan doubtless found that idea. Did he have an abiding love of Batman or was it a means of making his kind of movie on the mainstream stage?

Fantasy in all its forms is probably the most potent of social metaphors and as such can be complex and poetic. No one could ever accuse Game of Thrones of being childish. George RR Martin clearly saw the swords and sorcery genre as a fertile means to express his musings on ambition, power and lust. Perhaps it milieu makes it more commercial though, would a straight up historical drama have lasted so long? Maybe Game of Thrones wouldn’t have been made at all ten years ago. A world without Game of Thrones?! if Baudrillard had predicted that, I probably would have dropped out of university and become a cobbler**.

The point of all this is just to get my position clear. I’m not out of the fold, my passions and preoccupations remain. Sometimes it’s good to look at the state of the union and make sure we’re getting the best we can get. On one hand it’s a wonderful thing, having what used to be fringe concerns, suddenly ruling the mainstream but at the same time, these concerns have also been monetised and marketed and the things that made them precious to us, aren’t always the primary concern (right, Star Trek TOS fans?)

Also, it’s good to ask why we like this stuff, what makes it so alluring, so discussed, so sacred. Do we channel our passion and indignation into ephemera, rather than reality? Not just science fiction and fantasy but gossip and talent shows and nostalgia and people’s arses. Is it right? Is it dangerous? Something to discuss over a game of 3D chess, perhaps.

Speaking of which I better climb aboard the old hypocropter and fly back to writing Star Trek Beyond.

In short:

• I love Science Fiction and fantasy and do not think it’s all childish.
• I do not think it is all generated by dominant forces as a direct means of control…much.
• I am still a nerd and proud.

Love and rockets,
Simon

p.s. Timothy Dalton and Pierce Brosnan are also Stormtroopers in The Force Awakens.

*Those type of films are made today but not by big studios. Before Star Wars, SciFi and Fantasy were seen as B movie fodder, that the big studios were wary of. Alan Ladd Jnr really doesn’t get the credit he deserves for backing George Lucas.

**No disrespect to cobblers, I merely intended to allude to a profession that would not fill my days with fantasy. Not that cobblers can’t enjoy fantasy, they can. After all, some of them are magic elves who only come out at night to save a poor husband and wife from destitution. Surely a metaphor for the invisible underclass, enabling social mobility among the executive echelons of the pre war working class.

Greatest Threat to Free Speech Comes Not From Terrorism, But From Those Claiming to Fight It

By Glenn Greenwald
 
We learned recently from Paris that the Western world is deeply and passionately committed to free expression and ready to march and fight against attempts to suppress it. That’s a really good thing, since there are all sorts of severe suppression efforts underway in the West — perpetrated not by The Terrorists but by the western politicians claiming to fight them.

One of the most alarming examples comes, not at all surprisingly, from the U.K. government, which is currently agitating for new counter-terrorism powers “including plans for extremism disruption orders designed to restrict those trying to radicalize young people.” Here are the powers which the British Freedom Fighters and Democracy Protectors are seeking:

They would include a ban on broadcasting and a requirement to submit to the police in advance any proposed publication on the web and social media or in print. The bill will also contain plans for banning orders for extremist organisations which seek to undermine democracy or use hate speech in public places, but it will fall short of banning on the grounds of provoking hatred.

It will also contain new powers to close premises including mosques where extremists seek to influence others. The powers of the Charity Commission to root out charities that misappropriate funds towards extremism and terrorism will also be strengthened.

In essence, advocating any ideas or working for any political outcomes regarded by British politicians as “extremist” will not only be a crime, but can be physically banned in advance. Basking in his election victory, Prime Minister David Cameron unleashed this Orwellian decree to explain why new Thought Police powers are needed: “For too long, we have been a passively tolerant society, saying to our citizens ‘as long as you obey the law, we will leave you alone.'” It’s not enough for British subjects merely to “obey the law”; they must refrain from believing in or expressing ideas which Her Majesty’s Government dislikes.

If all that sounds menacing, tyrannical and even fascist to you — and really, how could it not? “extremism disruption orders” — you should really watch this video of Tory Home Secretary Theresa May try to justify the bill in an interview on BBC this morning. When pressed on what “extremism” means – specifically, when something crosses the line from legitimate disagreement into criminal “extremism” – she evades the question completely, instead repeatedly invoking creepy slogans about the need to stop those who seek to “undermine Our British Values” and, instead, ensure “we are together as one society, One Nation” (I personally believe this was all more lyrical in its original German). Click here to watch the video and see the face of Western authoritarianism, advocating powers in the name of Freedom that are its very antithesis.

Threats to free speech can come from lots of places. But right now, the greatest threat by far in the West to ideals of free expression is coming not from radical Muslims, but from the very Western governments claiming to fight them. The increasingly unhinged, Cheney-sounding governments of the UK, Australia, France, New Zealand and Canada — joining the U.S. — have a seemingly insatiable desire to curb freedoms in the name of protecting them: prosecuting people for Facebook postings critical of Western militarism or selling “radical” cable channels, imprisoning people for “radical” tweets, banning websites containing ideas they dislike, seeking (and obtaining) new powers of surveillance and detention for those people (usually though not exclusively Muslim citizens) who hold and espouse views deemed by these governments to be “radical.”

Anticipating Prime Minister Cameron’s new “anti-extremist” bill (to be unveiled in the “Queen’s Speech”), University of Bath Professor Bill Durodié said that “the window for free speech has now been firmly shut just a few months after so many political leaders walked in supposed solidarity for murdered cartoonists in France.” Actually, there has long been a broad, sustained assault in the West on core political liberties — specifically due process, free speech and free assembly — perpetrated not by “radical Muslims” but by those who endlessly claim to fight them. Sadly, and tellingly, none of that has triggered parades or marches or widespread condemnation by Western journalists and pundits. But for those who truly believe in principles of free expression — as opposed to pretending to when it allows one to bash the Other Tribe — these are the assaults that need marches and protests.

Legal Battle Possible Over Unconventional Family In City Mansion

By Vanessa de la Torre

HARTFORD — The zoning dispute surrounding the unconventional family living in a West End mansion might be far from over, a lawyer representing the residents said Wednesday.

"It's really up to them to make some decisions," attorney Peter Goselin said after the zoning board of appeals on Tuesday upheld a city cease-and-desist order that might force the group to disband or sell the stately brick home.

The residents plan to have a meeting soon to determine their next steps, Goselin said. "I can tell you that my clients don't have any plans to put their house on the market," he said.

Goselin's remarks left open the possibility of a legal showdown over the city's definition of what constitutes a family — a zoning controversy set in one of Hartford's wealthiest residential neighborhoods.

The eight adults and three children who live in the nine-bedroom house at 68 Scarborough St. say they share chores, eat dinners together and lend emotional support, as many families do. The group of longtime friends also became financially intertwined when they bought the nearly 6,000-square-foot home for $453,000 last summer and pooled money into a bank account for household expenses.

But Hartford's decades-old zoning regulations define members of a family as those related by blood, marriage, civil union or legal adoption. And under the Scarborough Street area's strict zoning for single-family homes, the city limits the number of unrelated residents to two people in the same dwelling.

Neighbors have argued that the nontraditional household — two couples with children, a couple with no children and two individuals — violates the zoning code, and the city agreed when it issued the cease-and-desist order last fall after determining that the arrangement "doesn't meet the definition of a family," Thomas Deller, the city's director of development services, has said.

The homeowners then appealed the order to the zoning board of appeals. "We intentionally came together as a family," resident Julia Rosenblatt, a co-founder of the HartBeat Ensemble theater company and mother of two, has told The Courant.

On Wednesday, residents at the house said they were still processing Tuesday night's ZBA setback and referred questions to Goselin, who argued that Hartford's zoning code is antiquated and "blatantly unconstitutional" in its definition of families. He has also pointed out an outdated provision that allows an unlimited number of domestic servants to live in single-family homes.

Among the 11 occupants in the Scarborough mansion are Hartford public school teachers, a professor at Capital Community College and a stay-at-home dad. They've been called the "Scarborough 11."

Trinity College associate professor Jack Dougherty compared the current regulations to class-based exclusionary zoning, which is legal but "problematic," he said at Tuesday's public hearing.

Since the zoning battle became news in November, Goselin said his clients have been "very encouraged by the amount of public support that they've received." Even with the ZBA's unanimous vote to uphold the cease-and-desist order, some of the board members expressed remorse that they had to follow the zoning code as written, he said.

"They made it very clear that they believed my clients really are a family, which is a big thing," Goselin said. "This is what they're putting on the line: 'This is who we are.'"

One of the ZBA commissioners, Hartford lawyer Meghan Freed, said in an email Wednesday that the Scarborough household meets her "personal definition of family, and fits within the definition of family that I believe should be contained in Hartford's zoning regulations.

"That said, they do not fit within the definition of family under the current regulations by which the ZBA is bound," Freed said. "The ZBA's authority on an appeal is limited to whether there was an error in the zoning enforcement officer's cease-and-desist notice ... and in this case, there just wasn't an error."

Freed said Hartford should consider amending its zoning laws to "include a more modern and inclusive definition of family, and I hope that the planning and zoning commission — the body with the authority to amend the zoning regulations — agrees."

In a recent memo to the city, UConn law professor Sara Bronin, who specializes in land-use issues and is chairwoman of the Hartford Planning and Zoning Commission, suggested potential changes to the single-family zones that would offer a middle ground: permitting four unrelated people to operate as a family under certain regulations, and a cap on the number of domestic servants.

"The key weakness of Hartford's approach to functional families, in my view, is the limitation on the number of unrelated adults to two," Bronin wrote. "To some, it might seem difficult to justify limiting the number of unrelated adults to two when we allow an unlimited number of servants."

Nearby towns and Connecticut's other major cities are more permissive about the number of unrelated people that can be considered family, with Bridgeport, Danbury, New Haven and Stamford allowing up to four unrelated residents in a single home, Bronin said in the memo.

Bronin stressed that any future changes to the zoning regulations would not apply to the 68 Scarborough case.

Still, Goselin said Bronin's widely circulated proposal might influence how people view his clients' predicament.

"The content of her memo acknowledges, in so many words, that this is a lawsuit waiting to happen," Goselin said. "Whether it's us or somebody else who brings it. It may very well be us."

Bronin said Wednesday that single-family zoning and density has been on the commission's radar since at least 2013, and that her memo, while an attempt to address "inconsistencies" in the Hartford regulations, "does not address the issue of constitutionality."

Judge: Warrantless Airport Seizure of Laptop 'Cannot Be Justified'

SonicSpike writes with news of a ruling in U.S. District Court that the seizure and search of a man's laptop without a warrant while he was in an airport during an international border crossing was not justified. According to Judge Amy Jackson's ruling (PDF), the defendant was already the subject of an investigation when officials used his international flight as a pretext for rifling through his laptop. The government argued that a laptop was simply a "container," and thus subject to warrantless searches to protect the homeland. But the judge said the search "was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim's privacy and so disconnected from not only the considerations underlying the breadth of the government's authority to search at the border, but also the border itself, that it was unreasonable."

She also noted that laptop searches may require more stringent legal support, since they are capable of holding much more private information than a box or duffel bag. And while a routine search involves a quick look through a container, this search was quite different: "[T]he agents created an identical image of Kim's entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task."

Retiring Missouri teacher suspended after showing 1959 anti-gay ‘Boys Beware’ video to class

BY Nicole Hensley

Ken Simon, 70, said he was placed on administrative leave at Raymore-Peculiar High School in Missouri for showing an outdated public service announcement.

A teacher at a Missouri high school had to throw in the towel a few weeks earlier than he planned, and faces disciplinary action to boot, after he showed a class full of “sleepy” seniors a decades-old public service announcement that depicted gay men as depraved sexual predators.

The video, an early example of the "stranger-danger" genre, hastened Ken Simon’s retirement, much to the dismay of students who staged protests outside the school on Thursday, reported KCTV-TV.

It’s titled “Boys Beware,” a 1959 film produced by the police department in Inglewood, Calif. It depicts gay men as child predators who lure young men into “intimate relationships” by offering rides, money, fishing trips and pornography.

Two students lodged complaints with the school’s administration over the video’s subject matter, sparking Simon’s suspension less than three weeks shy of his retirement from a 47-year-career at Raymore-Peculiar School District.

“For a stupid video. I showed it just to compare 1959 with 2015,” Simon, 70, told the Daily News. “We talk about the Jews being persecuted, the slave trade, but nobody has ever complained about that.”

A video produced by the Inglewood Police Department in 1959 warned against child luring, but also paints homosexuality as a mental illness.

The same film earned a glowing review from former Florida State Attorney Richard Gerstein, who in 1965 recommended it as required viewing at Dade County high schools to curb what he and others called "homosexuality."

It was “exceptionally well done and in very good taste,” Gerstein was quoted as saying by the Miami News.

Tastes certainly have a way of changing.

“What Jimmy didn’t know was that Ralph was sick. A sickness that was not visible like smallpox, but no less dangerous and contagious. A sickness of the mind,” the film’s narrator explains. “You see, Ralph was a homosexual, a person who demands an intimate relationship with members of their own sex.”

Students have taken to protesting Ken Simon’s suspension after showing the 1959 video to a class of seniors.

Simon said he taught world history for most of his lengthy career, but in his final weeks he found himself teaching a class on the psychology of law enforcement, the judicial system and the dangers of sex offenders - a waste of his time, he said, since he had no experience in public safety.

Looking for a change of pace, he found the “Boys Beware” film on Youtube and thought it would be “funny” to show students the outdated depictions of gay men. His bored senior class - slated to graduate at the end of this week - did not seem interested, Simon said.

Past teachers in his position have also shown students episodes of “Cops,” he said.

A former student came to the beleaguered teacher's defense, drafting a petition that says the students took Simon’s lesson out of context and has already been signed by more than 3,500 people.

“The administration then decided to make a rash and uncalled for decision to suspend a teacher, who is about to retire this very year, for fulfilling his duty in educating his students,” the petition’s creator, Alex Taylor, wrote.

Simon said he was grateful Taylor, and also his current and past students, who have reached out to show their support.

“Words can’t express my gratitude to those people,” Simon added.

Raymore-Peculiar School District officials said they would not address specifics of Simon’s employment status but said the matter will have no impact on his retirement benefits.

The district has no policy against showing historic news clips, including those regarding LGBT issues, the district’s spokeswoman, Michele Stidham, told The News.

Is This Justice? Charging an Eighth Grader with a Felony for “Hacking”

A 14-year-old eighth grader in Florida, Domanik Green, has been charged with a felony for “hacking” his teacher’s computer. The “hacking” in this instance was using a widely known password to change the desktop background of his teacher’s computer with an image of two men kissing. The outrage of being charged with a felony for what essentially amounts to a misguided prank should be familiar to those who follow how computer crimes are handled by our justice system.

Usually, when it comes to bad laws related to computer hacking, or unauthorized access, the focus is the federal Computer Fraud and Abuse Act (CFAA). However, this instance highlights that many states have their own version of the federal statute, with their own overbroad and insensible language, including Florida.

In fact, the Florida statute is even harsher than the CFAA. A lowest level offense under CFAA (1030(c)(2)(A)) is a misdemeanor, but in Florida, the lowest level offense (815.06(2)(A)) is a felony. Furthermore, the Florida statute also neglects to define what “authorized” or “unauthorized” means, and under these facts a reasonable person may think they are authorized if the passwords had been widely used by students.

In explaining why felony charges were brought against the teenager, Pasco County Sheriff Chris Nocco stated:

Even though some might say this is just a teenage prank, who knows what this teenager might have done...

The teacher’s computer reportedly had sensitive encrypted information related to the Florida Comprehensive Assessment Test (FCAT). However, the school and the sheriff have admitted that they found no evidence that the student tampered with or even intended to tamper with those files. Additionally, it has been reported that the school had terrible operational security where weak passwords, teachers entering passwords in front of students, and students regularly using teacher credentials, were prevalent. This further highlights the complications of using a statute to prosecute crimes that does not clearly define what it aims to criminalize.

Undeterred, the Sheriff goes on to say:

If information comes back to us and we get evidence (that other kids have done it), they're going to face the same consequences…

The arbitrary practice of how computer crime laws are applied is not just an exclusive feature of federal prosecutorial discretion, but local law enforcement also engages in such behavior. The idea of giving prosecutors and police discretion on charging decisions is generally seen as a good thing, but the plight of Domanik Green shows otherwise. The aggressive use of discretion here could have long-lasting consequences for a 14-year old child who will deal with the consequences of a felony­­—difficult job prospects, loss of voting rights, inability to carry a firearm, etc.—for a juvenile prank.

Charging decisions and punishment should be proportional to the harm a person causes. The only thing that “making an example” out of Domanik Green accomplishes is to make an example of how out of whack our computer crime laws—and the prosecutorial discretion that accompanies it—are. We call on Pasco County to do the sensible thing and not ruin Domanik Green’s life. This is not justice.

Supreme Court: Cops can’t hold suspects to wait for drug-sniffing dog

By Julian Hattem

The Supreme Court ruled 6-3 on Tuesday that the Constitution forbids police from holding a suspect without probable cause, even for fewer than 10 extra minutes.

Writing on behalf of the court, Justice Ruth Bader Ginsburg declared that the constitutional protections against unreasonable search and seizure prevent police from extending an otherwise completed traffic stop to allow for a drug-sniffing dog to arrive.

“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” she ruled.The case, Rodriguez v. United States, was brought by a man who was pulled over for driving on the shoulder of a Nebraska highway. After the police pulled him over, checked his license and issued a warning for his erratic driving, the officer asked whether he could walk his drug-sniffing dog around the vehicle.

The driver, Dennys Rodriguez, refused. However, the officer nonetheless detained him for “seven or eight minutes” until a backup officer arrived. Then, the original officer retrieved his dog.

After sniffing around the car, the dog detected drugs, and Rodriguez was indicted for possessing methamphetamine. In all, the stop lasted less than 30 minutes.

According to the Supreme Court, though, that search of Rodriguez’s car was illegal, and the evidence gathered in it should not be used at trial. While officers may use a dog to sniff around a car during the course of a routine traffic stop, they cannot extend the length of the stop in order to carry it out.

“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop,” Ginsburg ruled. “Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.”

Justices Clarence Thomas, Samuel Alito and Anthony Kennedy disagreed with the ruling, arguing that police can reasonably detain people to investigate other possible violations of the law.

In his dissenting opinion, Thomas said that majority’s ruling makes “meaningless" the legal difference between “reasonable suspicion” — which does not authorize a search of someone’s property — and “probable cause," which does.

“Had Officer Struble arrested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment,” he wrote, using the majority’s argument.

“But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently committed a constitutional violation. Such a view of the Fourth Amendment makes little sense.”

Trans teen wins the right to look like herself in driver's license photo

By Xeni Jardin


Chase Culpepper, 17, was told by DMV officials in South Carolina that she was prohibited from wearing makeup in her driver's license photo. The transgender teen sued in federal court for sex discrimination and violating her free speech rights. And she won.

"I am thrilled with the outcome of my lawsuit," Culpepper said in a statement. "My clothing and makeup reflect who I am. From day one, all I wanted was to get a driver's license that looks like me."

After today's settlement announcement, trans and genderqueer people in South Carolina will now be allowed to take license photos that reflect their everyday appearance.

[Culpepper] filed the federal lawsuit last September, accusing the South Carolina Department of Motor Vehicles of sex discrimination and violating her free speech. In the spring of 2014, she arrived at the DMV office in Anderson, S.C. wearing mascara and eye shadow, ready to take her driver's license photo. She says department officials promptly told her she had to remove the cosmetics before taking the photo because they were a "disguise."

More at NPR, and Reuters.

Under the terms of the settlement, the South Carolina Department of Motor Vehicles has promised to to send Culpepper a written apology and train staff how to treat transgender and gender-nonconforming individuals in professional settings with respect.

The Policy Machine

The dangers of letting algorithms make decisions in law enforcement, welfare, and child protection.
By Virginia Eubanks

Public services are becoming increasingly algorithmic, a reality that has spawned hyperbolic comparisons to RoboCop and Minority Report, enforcement droids and pre-cogs. But the future of high-tech policymaking looks less like science fiction and more like Google’s PageRank algorithm.

For example, according to the Chicago Tribune, Robert McDaniel, a 22-year-old Chicago resident, was surprised when police commander Barbara West showed up at his West Side home in 2013 to warn “the most dangerous gangbangers” to stop their violent ways. McDaniel, who had a misdemeanor conviction and several arrests on a variety of offenses—drug possession, gambling, domestic violence—had made Chicago’s now-notorious “heat list” of the 420 people most likely to be involved in violent crime sometime in the future. The list is the result of a proprietary predictive policing algorithm that likely crunches numbers on parole status, arrests, social networks, and proximity to violent crime.

In December 2007, Indiana resident Sheila Perdue received a notice in the mail that she must participate in a telephone interview in order to be recertified to receive public assistance. In the past, Perdue, who is deaf and suffers from emphysema, chronic obstructive pulmonary disease, and bipolar disorder, would have visited her local caseworker to explain why this was impossible. But the state’s welfare eligibility system had recently been “modernized,” leaving a website and an 800 number as the primary ways to communicate with the Family and Social Services Administration.

Perdue requested and was denied an in-person interview. She gathered her paperwork, traveled to a nearby help center, and requested assistance. Employees at the center referred her to the online system. Uncomfortable with the technology, she asked for help with the online forms and was refused. She filled out the application to the best of her ability. Several weeks later, she learned she was denied recertification. The reason? “Failure to cooperate” in establishing eligibility.

An algorithm is a set of instructions designed to produce an output: a recipe for decision-making, for finding solutions. In computerized form, algorithms are increasingly important to our political lives. According to legal scholar Danielle Keats Citron, automated decision-making systems like predictive policing or remote welfare eligibility no longer simply help humans in government agencies apply procedural rules; instead, they have become primary decision-makers in public policy. These abstract formulas have real, material impacts: One branded Robert McDaniel a likely criminal, while the other left Sheila Perdue without access to life-sustaining nutritional and health benefits.

Algorithms help human beings make decisions even as they—often less transparently—make decisions for them as well. Google’s much-debated PageRank algorithm, for example, calculates the relative importance of Web sources by counting the number and quality of links to individual pages. It also takes into account information collected about your previous searches, the “mobile compatibility” of resulting websites, and whether the results are Google’s own products and services. So Google’s algorithm sifts information in ways that influence what you see and what you don’t.

But algorithmic decision-making takes on a new level of significance when it moves beyond sifting your search results and into the realm of public policy. The algorithms that dominate policymaking — particularly in public services such as law enforcement, welfare, and child protection — act less like data sifters and more like gatekeepers, mediating access to public resources, assessing risks, and sorting groups of people into “deserving” and “undeserving” and “suspicious” and “unsuspicious” categories.

Policy algorithms promise increased efficiency, consistent application of rules, timelier decisions, and improved communication. But they also raise issues of equity and fairness, challenge existing due process rules, and can threaten Americans’ well-being. Predictive policing relies on data built upon a foundation of historical racial inequities in law enforcement. Remote eligibility systems run on the questionable assumption that lacking a single document—in a process that often requires dozens of pages of supporting material—is an affirmative refusal to cooperate with the welfare determination process.

Policy algorithms can cause real damage that is difficult to remedy under existing legal protections, especially when algorithms terminate basic services. If community members are unfairly stigmatized by police surveillance or incorrectly denied care for acute medical conditions, it is nearly impossible to make them whole after the fact.

So how do we preserve fairness, due process, and equity in automated decision-making?

1) We need to learn more about how policy algorithms work. Even after multiple Freedom of Information Act requests, the Chicago Police Department refuses to share the names of the people on its heat list or disclose the algorithm that generates it. Likewise, the code that determines welfare eligibility in Indiana is kept hidden. This is the rule, not the exception; policy algorithms are generally considered corporate intellectual property or are kept under wraps to keep users from developing ways to game the system. With his colleagues, Christian Sandvig, a scholar of information technology and public policy, suggest that one way to expose discrimination in automated decision-making is to perform algorithmic audits—much like paired audit studies that test for racial discrimination in housing and employment.

2) We need to address the political context of algorithms. Even if we achieve perfect transparency in policy algorithms, it might not change their innate biases. As both the Chicago and the Indiana cases show, automated systems are built on unexamined assumptions about the targets of public policy—their predisposition to criminal behavior or fraud, for example. These presumptions become inequities baked into the code that need to be uncovered and excised.

3) We need to address how cumulative disadvantage sediments in algorithms. All technological glitches are not equal, and patterns of digital error and response recapitulate historical forms of disadvantage. As the Leadership Conference on Civil and Human Rights recently stated, “Computerized decisionmaking … must be judged by its impact on real people, must operate fairly for all communities, and in particular must protect the interests of those that are disadvantaged or that have historically been the subject of discrimination.”

4) We need to respect constitutional principles, enforce legal rights, and strengthen due process procedures. Policy algorithms are neither individuals nor legal rules, per se, so it is difficult to prevent or address the damage caused by their mistakes and design flaws. We need to ask big, new questions: Who is at fault if a computer system correctly follows policy but the results disproportionately harm the poor? Can a computerized decision system be accused of racism? Even if we have to develop entirely new safeguards for due process and constitutional principles, we must act to protect participatory decision-making — a core tenet of our democracy.

Perhaps the most troubling aspect of policy by algorithm is what makes it most similar to ED-209, the two-legged enforcement droid in RoboCop: its lack of empathy and the potential for separating digital decision-makers from the embodied impact of their choices. Like drones, decision-making algorithms are a form of politics played out at a distance, generating a troubling amount of emotional remove.

But we also have to recognize that not all governance is data-based. Policy by algorithm seems clean, clear, and efficient, but its foundations are sunk in the same human complexities as any other form of decision-making. And that’s as it should be. Through politics, we enter into and adjust a social contract, create and reconsider shared values, and navigate our conflicting needs and desires. It’s a messy business. Policymaking can’t be paint-by-numbers—it’s a human enterprise that requires us to deploy and adapt all the quantitative and qualitative capacities we can muster.

Run a Wi-Fi Network? HBO and Showtime Want You to Police Your Users

Two men are going to fight this weekend, and HBO and Showtime have already thrown the first punch in the legal fight over online streaming of the match. Taking advantage of an increasingly abused loophole in copyright law, they have just won a court order requiring a host of third parties to block access to sites that may stream the fight. In other words, if you run a Wi-Fi network (for example, you’re a coffee shop) and someone may use your network to watch the Pacquiao/Mayweather fight via unauthorized sources, HBO and Showtime think they can force you to block your customers’ access.

HBO and Showtime are relying on part of the Copyright Act, 17 U.S.C. § 411(c), that allows a broadcaster to file a “pre-emptive” suit to stop planned infringing streams. As part of that lawsuit, a would-be copyright owner can ask for an injunction to prohibit the anticipated infringement. With respect to the Pacquiao/Mayweather fight, HBO and Showtime asked for, and got, a court order to prevent two websites from carrying out their purported plan to show the fight without authorization. In the lawsuit, they asked the court to issue an injunction against boxinghd.net, sportship.org, and those who are in “active concert or participation with them.”

But that’s not the worrisome bit. HBO also persuaded the Court to order “all service providers whose services will enable or facilitate Defendants’ anticipated infringement [] to suspend all services with respect to Defendants’ Infringing Websites, including all registrars, hosts, name servers, site acceleration providers, providers of video delivery resources, and providers of computer and network resources through which video transits.” In other words, any service provider who gets this court order has to “suspend all services” with respect to the enjoined websites—even though they never had a chance to weigh in.

You may not feel much sympathy for the websites in question. But this kind of site-blocking, without real legal process, is essentially one of the worst parts of the ill-conceived, long-dead Stop Online Piracy Act (SOPA) being brought in through the courtroom back door. HBO got an order to block content against those who act as intermediaries, even though they have nothing to do with the alleged illegality of the sites, are simply providing normal business services, and almost surely had no notice that they were about to be enjoined.

This is not the way our legal system is meant to work, and the good news is that it actually doesn’t. Federal Rules only allow courts to issue injunctions against those who truly are in “active concert or participation” with bad actors. We doubt that those who offer hosting services and video delivery, without more, can properly be considered in “active concert or participation” with the unauthorized streamers.

Imagine if a court ordered the TV news not to talk to people who allegedly planned to commit defamation, or ordered libraries to not lend books that hadn’t even been published, or told art supply stores they had to make sure no one could make infringing art with their materials. This is the basically same thing. HBO and Showtime may find it convenient to get a court to order unwitting intermediaries to block content, rather than going after people who might actually infringe their rights. But getting a court to edit the Internet, without due process, take us down a dangerous path that the Internet soundly rejected back when it was called SOPA. We’re keeping a close eye on this new trend, because whatever name it has, pre-emptive Internet censorship is bad news.

Just another isolated incident.