Monthly Archives: August 2010

How To Legalize Polygamous Marriage

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Among those who favor marriage discrimination, one of the arguments commonly trotted out is that if we allow gay marriage, then there is no rationale for for opposing polygamy. This argument is almost too silly to be taken seriously, but one of the key differences it fails to acknowledge is that gay marriage is structurally and functionally identical to “straight marriage,” whereas the introduction of polygamous marriage would require the extensive adoption of legal structures currently unknown in the United States.

Now that coverture has been abolished, marriage is a gender-blind contractual arrangement, with one glaring exception: its entry requirements. Legally, the gender of any particular spouse has no relevance as to how marriage laws are administered — marriage is nothing more (legally speaking) than a specialized contract between two parties which confers on them a laundry list of legal privileges and obligations, as well as recognition as a specialized class under certain statutes, such as, for instance, the tax code or debt collection law.

Because of marriage’s gender neutrality, the recognition of gay marriage requires no change in the law, other than removing gender discrimination in regards to who has access to marriage contracts. Polygamy, on the other hand, is a helluva lot harder to implement. Unlike gay marriage, allowing polygamous marriage would require the creation of an entirely new form of marriage contract — or rather, it would require the creation of entirely new forms of marriage contracts.

While I consider the legalization of gay marriage to be of an extremely greater social, moral, and legal importance than is the question of polygamy, I do think polygamy should be permitted. Or, to put it in a more conservative manner: I am in favor of the deregulation of marriage. Although I am fairly neutral in regards to the idea of polygamy in general, I am a strong proponent of allowing people to structure their lives in whatever manner they believe best serves their own pursuit of life, liberty, happiness, etc. And for some people, that’s going to include non-traditional marriage forms.

Although politically speaking I think it is exceedingly unlikely that polygamy will ever be legalized in the U.S., other states, including Canada, are in fact grappling with these questions now. But what if we did want to make polygamy legal in the U.S.? What would it look like? What legal structures would be required to implement it? This post is intended as a sketch of what would be needed, in terms of legal structures, to create the institution of polygamous marriage:

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Plants vs. Zombies vs. Michael Jackson’s Estate

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Plants vs. Zombies, an addictive game that is premised upon just what the title would suggest, features a character called the “Dancing Zombie.” Although fairly obscure in that the face is just a regular zombie-face, the style of dress and dancing of the zombie pretty strongly suggests that the character is intended to be a reference to Michael Jackson. (For the record, the Dancing Zombie pre-dates Jackson’s death, and is a reference to Thriller rather than tasteless commentary on his demise.) Dancing Zombie basically does a zombie waltz to attack your plants, and then spawns four Undead Dancing Minions, back-up zombie dancers from the set of Thriller who join in the fight. The in-game bio of the Dancing Zombie also strongly hints that the connection is deliberate:

Turns out Michael Jackson’s estate got wind of the game, and sent an objection to Popcap disputing their right to feature the Dancing Zombie character. Rather than engage in litigation against a very well-funded foe, Popcap broke down and agreed to replace Dancing Zombie with “Disco Zombie”:

The Estate of Michael Jackson objected to our use of the ‘dancing zombie’ in PLANTS vs. ZOMBIES based on its view that the zombie too closely resembled Michael Jackson. After receiving this objection, PopCap made a business decision to retire the original ‘dancing zombie’ and replace it with a different ‘dancing zombie’ character for future builds of PLANTS vs.ZOMBIES on all platforms. The phase-out and replacement process is underway.

Some quick research failed to turn up what exactly the Michael Jackson Estate’s “objection” was, but presumably it was some variation an alleged violation of Right of Publicity. Right of Publicity is a sort of hybrid version of unfair competition and/or misappropriation, although it is distinct from other forms of IP law, and is administered by the states rather than at the federal level. However, thanks to the First Amendment, the right of publicity has several exceptions, generally thrown under the catch-all category of “newsworthiness.” One of these exceptions is that there is no tort under right of publicity for a depiction of an individual for “entertainment and amusement concerning interesting aspects of an individual’s identity.”

The Dancing Zombie character might seem to fall under this category, but the Newsworthiness Exception also requires a reasonable relationship between the identity of the identical depicted and the subject matter of the story. Although, theoretically, Michael Jackson’s death (and the speculation of his life as a member of the undead…) might be grounds for finding the necessary “reasonable relationship,” it’s clear the Dancing Zombie was simply a Thriller spoof. And although some states, like New York, do not recognize a cause of action for post-mortem right of publicity, many states do, and Plants vs. Zombies has been released nationwide.

Of course, the Michael Jackson Estate’s complaint also raises the question of how to separate the persona of a celebrity from the persona of the characters they play. Plants vs. Zombies can very strongly be construed to be a likeness not of Michael Jackson, but rather of the character he plays in the Thriller music video. Although in Hoffman v. Capital Cities/ABC, Inc. Dustin Hoffman successfully argued a claim for right of publicity based upon a magazine’s alteration of his character Tootsie, that incident actually involved a photographic depiction of Hoffman as the character. In contrast, the Plants vs. Zombies character doesn’t even bear the slightest physical likeness to MJ — but it is an iconic reference to the Thriller character he played.

Long story short, I think Popcap Games could’ve won this case, although it is by no means guaranteed, and it would be a complex question of law that would take quite a bit of time and legal fees to untangle. So it is no surprise that Popcap backed down and Dancing Zombie was axed, but I’m a bit disappointed in the result. This would have been a great test case for the development (or curtailing) of Right of Publicity law, including the issue of how much protection celebrities have against unauthorized depictions not of themselves, but of the personas they have portrayed.

-Susan

Brilliant People Agree With Orin

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Here is a superb and extremely insightful post from Orin Kerr, the World’s Most Reasonable Person:

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant.

I agree with everything you have ever written, Orin. Except for maybe that one grade in Computer Crime, I think you were maybe a little tiny bit half-a-grade wrong then, possibly. But everything else you are right about.

-Susan

A Mosque in Manhattan

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The 9/11 terrorists did not carry out a strategic assault aimed at weakening America’s military capabilites, but instead made an attack on the abstract concept of “Americaness” itself. The Twin Towers were the chosen target not because the World Trade Center was literally or factually involved in the United State’s perceived transgressions, but because they were an iconic symbol of America as a whole.

To the terrorists, it was irrelevant that the towers were full of people who were just going about their daily lives, 99.9% of whom did not have the slightest thing to do with America’s involvement in the Middle East beyond the fact they mostly happened to share a nationality with those who were.

I think that’s what kills me the most about the absurd sturm und drang that has sprung up around the construction of the so-called “Ground Zero Mosque.” Ignoring the most absurd parts of the debate — (1) The Muslim center is not actually in the Ground Zero area, but is several blocks away, and (2) Hello, anyone remember the First Amendment? — it’s the way that the anti-Mosque faction has adopted the same narrow mindset as the terrorist groups that is the most bothersome. For both groups, the thinking goes something like this:

The Twin Towers were a prominent symbol of the idea of America; certain American initiatives abroad were wrongful interferences with the affairs of other nations or were perceived as such by radical terrorist groups; ergo, the Twin Towers should be destroyed. A mosque is a prominent symbol of Islam; certain Islamic groups carried out horrific attacks on the Twin Towers; ergo, mosques are prohibited from ever existing in lower Manhattan.

The logic, or rather lack thereof, is the same in both cases.

That prominent American figures have bought into this political synecdochism is embarrassing and wrong-headed, and is costing us a rather excellent opportunity to show the world who the better man is. Americans have a Constitutional right to build a Mosque wherever construction of a similar structure would be permitted, but this goes beyond basic legal rights; the idea that the Cordoba House is to be punished merely because it happens to have the same descriptive label — “Muslim” — as some people who once did something bad to the U.S. is a fundamentally un-American belief. In contrast, I cannot imagine a better symbol for the American ideal than that of a Mosque, quietly co-existing with its neighbors, close to where the Twin Towers once stood.

-Susan

WikiLeaks Takes Out An Insurance Policy

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Last week, WikiLeaks released the Afghan War Diary, a collection of 77,000 classified U.S. military documents regarding the campaigns in Iraq in Afghanistan. Pfc. Bradley E. Manning is the primary suspect in the leak, and has been accused of providing WikiLeaks with State Department diplomatic cables as well as a video of a U.S. army helicopter attack in which unarmed civilians.

A few days ago, WikiLeaks quietly added up a new file to its page, 1.4GB, heavily encrypted, and given the mysterious and intriguing title of “Insurance file.” Speculation has run rampant as to what exactly it contained in the file, when or if it will be decrypted, and what the purpose behind it is. It’s hard to tell, though, if this is all a high tech cloak-and-daggers kind of move, or if it’s just smoke and mirrors being used to simply keep the DoD and DoJ on their toes:

The file, “insurance.aes256,” is ten times the size of the seven other files combined. Appears to be encrypted with AES Crypt. Wonder if it includes the 15,000 Afghan files withheld, or the original raw files, or perhaps much more, pre-positioned for public release (“insurance”) against an attack expected to come from DoD and Justice or parties unknown. A passphrase to be distributed or published widely in case of a takedown.

The “15,000 Afghan files withheld” are the files that Julian Assange alleges were withheld in order to protect extra-sensitive information.

The best guess I have seen is that the Insurance file is a mirror of the whole of WikiLeaks. It’s a more boring explanation, but it does make a certain amount of sense — this way, no matter what government officials do, WikiLeaks will continue to exist in the form of thousands or even millions of mirror copies spread out on computers all around the world.

As for Assange, there’s been a manhunt on for him for months now, but Assange has avoided making any appearances in the United States. It’s pretty clear that if they ever do find him, the DoJ intends to take legal action against him — prosecution for various security violations does not seem unlikely.

-Susan

You Know How If You Repeat a Word Too Many Times it Loses All Meaning?

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It turns out there’s actually a term for that: semantic satiation.

The explanation for the phenomenon was that verbal repetition repeatedly aroused a specific neural pattern in the cortex which corresponds to the meaning of the word. Rapid repetition causes both the peripheral sensorimotor activity and the central neural activation to fire repeatedly, which is known to cause reactive inhibition, hence a reduction in the intensity of the activity with each repetition. Jakobovits James (1962) calls this theory the beginning of “experimental neurosemantics.”

There is also a reverse but related phenomenon, semantic generation, which describes an increase in the intensity of meaning of a word when it is repeated:

It would seem at first that semantic generation and semantic satiation are contradictory phenomena, since at one time repeated exposure leads to an increase in the intensity of meaning and at another time to a decrease. This seeming paradox can be resolved by presenting a frequency law (see Jakobovits & Lambert, 1963, and Jakobovits & Hogenraad, 1967) which states that the relation between the intensity of a response and the frequency of exposure of the stimulus approximates an inverted U-shaped distribution. The rising part of the curve represents the semantic generation phase, indicating an increase in intensity of meaning during the initial stages of repetition. The falling part of the curve represents the semantic satiation phase, indicating a decrease in intensity of meaning as exposure continues. The point where the curve changes inflection is referred to as the “critical point” and marks the stage after which exposure results in an inhibitory rather than a facilitative effect.

-Susan