On the use of public office to suppress the display and sale of artistic works

Weeks ago, I heard about a controversy in Australia having to do with the sale of certain manga in the Sydney branch of Kinokuniya, a Japanese bookstore chain with locations around the world. Last July, South Australian state legislator Connie Bonaros made a complaint regarding volumes sold there, including such titles as Eromanga-sensei, No Game No Life, Sword Art Online, and Inside Mari, on the grounds that they violated Australian law regulating certain types of sexual artistic depictions. The exchange of letters between Bonaros and Kinokuniya officer Keijiro Mori can be found in the link above, but the gist seems to be that Bonaros thought some of the anime-styled girls in works that include sexual content looked like minors and came to the conclusion that their sale in Australia constituted a violation of the law.

If we talk about how horrible this is and have it banned from stores, people will definitely stop reading it! That has always, always worked.

I feel bad for Australian manga and light novel readers who were into those series, and especially for fans of No Game No Life, a few volumes of which received an outright sale/importation ban. It’s worth mentioning that we’re not even talking about some hentai doujins and manga you might find in the seedier shops in Akihabara; most of the affected series are massively popular and none are pornographic as far as I understand. It also seems weird that a South Australian state legislator can have any say at all over what books can be sold in Sydney, which is located not in South Australia but in New South Wales. That sounds to me something like a Virginia state senator getting books removed from a New York bookstore, which would be unthinkable here in the US.

But I’m not an expert in Australian law. In fact, I don’t really know anything about it except that the Australian constitution doesn’t contain an explicit protection for freedom of speech or expression. Since Bonaros is an Australian lawyer and I’m an American one, I’ll defer to her understanding of her own country’s law. I just hope fans and other artists in Australia can find a way to gain a stronger voice in politics.

All that said, I think the victory won by Bonaros has to be examined more closely. It raises a question that’s relevant to every fan of anime, manga, video games, literature, and art in general living in any country on Earth. That is: how far should a public official be able to use the power and influence afforded by their office to suppress the display and sale of an artistic work? Because that is apparently what Bonaros did. No legislation seems to have been proposed; no evidence was brought forward to show that the contents of the listed works actually violated Australian law (or if it was raised, it wasn’t mentioned in the reports I found.) And there’s certainly been no solid evidence brought forward that said works have a harmful effect on their readers or on society in general. It seems that Bonaros simply saw some manga that rubbed her the wrong way, used her platform as a legislator to complain about it, and successfully pressured Kinokuniya into removing it.

I can’t pretend that this incident in Australia doesn’t affect fans of manga, anime, or related works here in the States either. Because Bonaros also requested a list of other countries in which Kinokuniya still sells No Game No Life and the other titles she objects to, presumably including its American branches, and pressured the company to ban their sale globally.1 As a result, it’s now undoubtedly an issue for us Americans as well. And since she’s made it an issue for us, let’s have a look at US law to see whether or how such an incident might play out here.

Unlike my last couple of posts on this general subject, this time around we’re specifically concerned with the First Amendment. Here’s the original text in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Pretty short considering how much has been said about it since it was ratified in 1791. And we’re only concerned here with the middle clause, and specifically with this statement: Congress shall make no lawabridging the freedom of speech.

It’s understood that artistic expression counts as “speech”, and this naturally includes manga (and visual novels, and drawings, etc.) However, that doesn’t mean these are all entirely safe from regulation. Congress has made laws abridging the freedom of speech since, but these were passed when the courts carved exceptions out of that guaranteed protection. An example of such an exception is found in the Supreme Court case Brandenburg v. Ohio2 (note: citations provided in the footnotes in case you want to look them up) in which the Court determined that the government could not regulate speech on the basis of violent or incendiary content unless it was 1) “directed to inciting or producing imminent lawless action,” and 2) “likely to incite or produce such action.”

So it’s unconstitutional to arrest someone for throwing out extremist political views, for example, unless they’re actually stirring up a group to do some immediate violence or lawbreaking. It’s a very limited restriction but an important one — essentially, the Court has said that the government shouldn’t have the power to restrict this kind of speech unless it’s about to cause actual harm.

Artistic expression has also been restricted in limited ways and on similar grounds. Certain kinds of expressions that involve causing harm to others, for example, are rightly recognized as falling outside of the First Amendment’s protection. When the artistic expression in question doesn’t involve such harm, however — for example, when actors are depicted being harmed through the use of effects and studio tricks, or the expression consists of drawing or sculpture or some similar form — the standard for regulating the expression is far higher. Even if an artistic expression seems revolting, as long as it’s not found to be obscene or otherwise outside the protection of the First Amendment, it can’t be banned or suppressed through government action.

And the obscenity standard set by the Supreme Court in Miller v. California is extremely difficult to meet. Attempts at getting around this test through other sorts of official action have usually failed, as in the case of Bery v. New York,3 in which the Second Circuit Court of Appeals struck down a government regulation requiring artists to be officially licensed to sell their work on public streets. Even if a regulation isn’t obviously intended to restrict freedom of expression, if it has that effect, it’s subject to the First Amendment and likely to be struck down in the same way.

However, let’s say that “official” government action isn’t being taken. What if, as in South Australia, some legislator stands up and simply talks about how bad some work of fiction is, how it’s degrading the morals of the people by its very existence, and how for those reasons Amazon should stop selling it? What if people petition Amazon on that basis and the company gives into public pressure and removes said work? In other words: can a public official legally use the power and influence of their office to skirt the First Amendment and have an artistic work suppressed without “making a law”?

Again, this is no hypothetical, because we’ve already seen it happen. I brought up several examples of such attempts at content-based regulation in another previous post. The most relevant here is the string of attacks on video games made by Congress in the early 90s, most famously against the Sega CD game Night Trap. Looking back, it seems strange that this FMV game was ever at the center of a controversy. Its contents are pretty tame, but some legislators spoke against it anyway, most notably former Senator Joe Lieberman, for containing gratuitous violence and lewdness. Following a congressional hearing in 1993 on the subject of video game violence (during which Lieberman admitted to never having actually played Night Trap) the game was pulled from distribution by major distributors and later pulled from the market altogether.

If it hadn’t been for that controversy, though, this game wouldn’t have gotten a rerelease/remaster on Steam, no way in hell.

The facts that the Sega CD was a marketing failure, and that by most accounts Night Trap was a lousy game, might have something to do with its pulling from distribution, but the influence of interest groups driven at least in part by public condemnation has to be considered. In my view, the use of a congressional hearing in this way taints the market and is an example of government overreach into the regulation of art. Lieberman’s view of Night Trap doesn’t seem very different from Bonaros’ view of No Game No Life and the rest of the manga on her list: both came to conclusions about the meanings and effects of the works seemingly without supporting evidence, and both ended up having an effect on the distribution of the work (in Bonaros’ case a much more direct and obvious effect, though.)

It seems this kind of government interference in art is hard to prevent even in the US, however; it’s happened so many times already (see also the Hays Code and the Parents Music Resource Center.) And there’s no reason to think it won’t happen again. At the moment, the US is going through a shitstorm for lack of a better term, or at least I can’t think of a better one to use, so people aren’t thinking too much about how music or video games are going to turn fans into degenerates or criminals. But that won’t last forever. One day when things are less chaotic, we’ll have another moral panic in which art is attacked as a way to avoid actually addressing societal problems. And since it doesn’t seem to be considered a violation of the First Amendment for politicians to use their influence to try to have works regulated or removed from sale, maybe the better question to ask at that point is: “Should they be allowed to do so?”

Let’s just do this again, why not.

Of course, my answer is “no.” The First Amendment’s guarantee of free expression loses some of its teeth when politicians are able to use the resources and influence of office to essentially get around it. Yet I don’t see a solution to that other than maintaining a culture of open and free expression. That’s a culture that has been under attack recently, especially with regard to anime, manga, and anime/manga-influenced games. We just have to remain vigilant as usual, calling out hypocrisy and scapegoating when we see it, and always in a civil but forceful manner.

I’ve lived in a country where the government had near-complete control over art and the press and where the dominant culture supported that control, and I can tell you it’s not fun. Many of the people who think they want that kind of power to be exerted against expression they don’t like here in the US might be in for an unpleasant surprise when they find works they like on the chopping block. But by then, if we ever get to the point where the First Amendment is so eroded, it will be too late to do anything about it.

So there’s my dire warning as usual. And as usual, I’m interested in other opinions. Do you have a different angle on these issues? Do you think Bonaros was right and justified in what she did? If you do, I don’t think we’ll find much common ground, but it’s still worth talking about. Maybe there were some important facts in that case that were glossed over or that I missed. Or maybe my own views on the issue as an American are considered weird in other countries. I know for a fact that’s the case, but that’s also part of why I came back here after all. 𒀭

1 Thankfully, Kinokuniya’s response to this request was: “In terms of our action globally, wherever our stores are situated we respect local law and culture, and make ordering decisions respectively and accordingly.” Which sounds like a diplomatic way of saying “mind your own damn business.”

2 395 US 444 (1969).

3 97 F.3d 689 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997). There’s an interesting note about the case here (a note being an article written by a law student in an academic journal — I wrote a note myself, but it was a piece of shit and rightly didn’t get published.) A good read if you’re interested in the subject.

In defense of offensive content

Months ago, I wrote a post about obscenity law in the US and how anime, game, and similar material that some people would consider offensive or objectionable fit into that framework. However, there was a key question I left hanging back then that I’d like to address now: why protect art that many might find offensive? And in particular, why protect the creation and marketing of erotic and pornographic content?

I might also be writing this because Evenicle was one of the games I got during the lunar new year Steam sale

As I wrote before, this isn’t merely an academic question, because some people seem to believe they should be allowed to enforce their personal views about art by effectively regulating the expression of people they disagree with. You’d think that socially conservative fervor of the 80s and 90s had made a comeback for some of the puritanical screeds you’ll find on Twitter, Reddit, Facebook, and all the other big social media platforms. This attitude seems to be thriving now more than ever, in fact. See Sony’s changes to their content policies over the last year and self-censorship now on the part of even Japanese developers and publishers. I certainly can’t say how much, but at least some of this is likely a reaction to these agitators. Even honest, hardworking NSFW artists on Twitter have had to bear insults and attempts at shaming online, and for what? For exercising their rights to free expression. I know I’m a complete nobody who should probably be saying these ideas while standing on top of an actual soapbox in a public park, but I’ll be goddamned if I’m going to stop talking about these issues while things remain as they are. Hence this post, in which I’ll probably once again be preaching to the choir. But I welcome anyone who disagrees with me to read through my arguments and post a comment challenging them.

As before, I’ll be looking at this question partly from the legal perspective, with all the same disclaimers contained in my last post on the subject: none of this constitutes legal advice, it’s all probably nonsense, etc. etc. If you haven’t read that post, I’d recommend it anyway — you don’t have to read that one to understand this one, but it does provide some background to what I’m writing about here. Again, I’ll be addressing the situation here in the United States because that’s where I live and hold my license, though I do think a lot of the following arguments apply universally. And finally, if you’re tired of reading my broken record bullshit ranting and raving about art and censorship, you should probably skip this post. Drop in some other time.

First of all, what constitutes offensive art? There are probably as least as many answers to this question as there are people on Earth, so I don’t want to say I have an exact definition of the term. And I can’t refer back to the Supreme Court’s Miller v. California test here, because while it uses the term “patently offensive” in its second prong, it doesn’t define it other than to say that something patently offensive might be considered obscene. Moreover, different works of art offend different sets of people, and they offend for different reasons.

Yes, the First Amendment generally protects art from government prohibition, even if the author’s intent is mainly to offend. However, there are plenty out there who want to regulate art on the basis of its content, whether they perceive it to be too violent, or too sexual, or expressing an unacceptable political or social opinion. While these people aren’t anywhere near a majority of the consumer base, they’re fanatical and vocal enough to have their views taken into account by developers and publishers who will sometimes practice self-censorship simply to try to avoid a controversy.

I still don’t know if that’s why Nintendo censored Tharja’s butt in the Fire Emblem: Awakening DLC. I guess a tame bikini shot was just too much for American 3DS owners to handle.

I suppose it’s very obvious by now how I feel about these self-appointed guardians of purity and their efforts to strictly define the boundaries of what’s acceptable in art. I believe that people should have the right to enjoy any kind of art they like as long as that art doesn’t involve causing harm to others.1 My belief in protecting the integrity (and even the sanctity if you want to get really lofty about it) of art and its free enjoyment has a simple basis: that none of us chose to be born on Earth, into whatever society we happen to live in, so why shouldn’t we be able to escape from our daily lives however we wish? It doesn’t seem right that anyone should be prevented from getting their escapism in whatever way works best for them, and I’ll defend this position until I’m cold and dead in the ground.

Okay, so maybe I’m getting a little dramatic. But I feel just that strongly that people should be able to create and enjoy art freely. To that end, I’ve made a very incomplete roadmap of arguments to defend that position. I also have to admit that I feel this strongly in part because the above-mentioned fanatics like to go after some of the developers I like for their inclusion of erotic or even just plain pornographic content into their games. I’m not talking about criticism here, to be clear: I have no problem with someone saying they think a game or anime series I like is lousy for reasons I disagree with. Reasonable people can and do disagree about the quality of art — that in itself is completely normal. No, my arguments are directed against those who pressure developers and publishers to self-censor and who support restricting the sales of these kinds of works, banning them from online platforms, or taking similar action.

These are also purposely written as defenses, not as attacks. I’m not really interested in attacking anyone else’s personal views, just as long as said views aren’t put into practice with the effect of restricting the legitimate freedoms enjoyed by all the rest of us. Again, if you disagree with anything I’ve written below, please feel free to post a comment. Same if you’ve found a hole in any of my counterarguments.

So let’s begin. I’ll throw out some of the most common attacks I’ve heard along with my responses to them.

The distribution of socially harmful works should be restricted for the public good.

This is probably the most common argument I’ve seen in favor of censorship or heavy regulation, and probably because it’s one of the more convincing arguments its proponents have. While I don’t see much of a problem with pornography in itself, it’s true that its excessive use can hurt a relationship if it’s diverting attention from one or both of the partners. The same might even go for milder forms of erotic art, though it seems a lot less likely to be the case the tamer the content gets.

However, this is not a valid argument to restrict such content, much less to ban it from certain platforms. There are plenty of perfectly legal habits and practices that do more demonstrable harm to the people involved in them. Gambling, drinking, and tobacco use each arguably take a far greater toll on mental and physical health, relationships, and the public good as a result. Yet they’re not banned, and nobody outside of a few on the political fringes seriously suggest they should be. They’re regulated to some extent, but beyond that people are free to enjoy such potentially destructive habits. So unless the person making this argument is also advocating for the banning of all potentially socially harmful vices, it comes off as disingenuous. Even if some people may find a way to use such material irresponsibly, it doesn’t follow that it should be banned or strictly regulated.2

Not unless something like this ends up happening, and even then I’m probably okay with it.

That’s not even mentioning the fact that some works containing erotic content deliver what most people would consider positive social messages. Interspecies Reviewers, for example, has stirred up controversy for its sexual content, but from what I’ve seen of it, the manga and anime both express ideas of acceptance and diversity in a natural, non-stilted way. The content is certainly sexual, but the message is a good one. The same is true of many other works that take hits for being “fanservice garbage” or “basically porn” without regard for their context. In fact, a lot of the proponents of censorship don’t seem very interested in considering context. But context is everything. It’s what gives content its meaning. How can it be ignored if the argument is based on the supposed harm an artistic work might do to society? It’s also worth mentioning that there’s a difference between erotic and pornographic material, and also between non-sexual nudity and sexual content — differences that rely upon context. Context that, again, all too often goes ignored.

But nobody’s talking about a government ban.  Calls for the artists and the game industry to self-regulate have nothing to do with First Amendment rights.

It’s true that this isn’t a First Amendment issue, at least in the way these arguments are normally made. Groups that pressure artists to self-censor can claim that much. However, self-censorship can create the same kind of chilled environment for art that government censorship can, to the point that there may be no real difference between the two.

This isn’t just a hypothetical situation. It’s occurred throughout our modern history, both before and after the landmark Miller case. Looking back to the 1950s, we can find the Comics Code Authority, a private organization created by the comic book industry to regulate its own product. See also the Hays Code, which from the 1930s to the 1960s strictly regulated content in American films that the MPAA perceived as carrying immoral messages. And as recently as the 1980s, the Parents Music Resource Center, headed up by the wives of several prominent DC politicians, pushed for the heavy regulation of rock, rap, and pop albums for their perceived violent and sexual content. Senate hearings took place in which musicians as varied as Frank Zappa and John Denver warned about the dangers of censorship of music and of art in general. These proceedings resulted in a compromise, the infamous Parental Advisory sticker, which ended up becoming a kind of badge of honor for musicians whose albums received it — presumably not the effect the PMRC had intended.

This label should have just said “BUY ME TO LISTEN TO SWEARING AND WORDS ABOUT SEX”

This is the pattern of censorship of art in America: not direct government prohibition, which would in almost every case violate the First Amendment, but rather interest groups urging politicians to “encourage” industry associations to regulate themselves (fill in the blank implied by “encourage” however you like, but money is certainly involved, at least indirectly.) Sure, that doesn’t create a First Amendment issue, but the end result is nearly identical. So why should things proceed any differently now with video games? Starting in the 1990s, interest groups of various stripes have pushed for the regulation of games. This again resulted in a compromise with the creation of the ESRB and its rating system. Which I think is a perfectly reasonable, sensible approach to the issue. Mark games with content that might be objectionable on the box and let the consumer decide what to play on that basis. Or let parents decide what games are suitable for their kids to play. The creation of this framework should have ended the controversy about objectionable video and PC game content, but naturally it hasn’t, because games make for a convenient scapegoat when bad things happen. Easier to blame this weird new popular entertainment medium than to admit that there are underlying problems in society that need fixing and trying to actually fix them.

I suppose all this boils down to the following: while it isn’t, strictly speaking, a First Amendment issue, it doesn’t really matter if the end result is effectively the same as placing a direct ban on or restriction of erotic or otherwise off-color content. That’s assuming that the various interest groups in question don’t try to have such material banned outright, which is not something we can take as a given. As I wrote in my first post on the subject, there’s no reason to believe socially conservative groups that want to tear down the wall of separation between church and state would have any love for the free speech clause of the First Amendment. And I highly doubt the group of fanatics attacking artistic integrity from the political left would care either. Extremists and fanatics in general seem to think in the same way, even if their end goals are diametrically opposed. As far as they’re concerned, freedom of expression is a right that belongs to their camp and a privilege that may or may not be extended to others depending upon what they want to express.

However, that wasn’t exactly what our founders had in mind when they signed off on the Bill of Rights. It certainly doesn’t fit with the current understanding of the First Amendment, at least not since the old English legal precedent Regina v. Hicklin was overturned by the Supreme Court back in 1957.3 The Hicklin standard that governed until the mid-20th century defined obscene and therefore bannable art by testing “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of [the] sort may fall.” Though it’s usually not stated outright, this seems to be the standard that some of those on the extreme but very vocal fringes want to return to. The trouble with Hicklin, aside from being far too broadly worded, is that it requires a moral arbiter to decide what counts as an immoral influence. I know many of our friends on the far right and left would be happy to take that role, but good luck finding any consensus on the matter. This is the sort of thing that might work in a very small community where everyone goes to the same church, but the point is the standard wouldn’t extend beyond the bounds of that community. The alternative, again, is to impose the values of one of the lunatic fringe upon the entire population.

If there’s one thing the members of ResetEra and Focus on the Family can agree on, it’s that short shorts and thick thighs in video games are a terrible and corrupting influence on their players

So you’re that willing to defend your anime boobs and all that stupid nonsense? There are far greater problems to deal with than this, so you should just drop the issue.

I certainly agree that the human race faces greater problems than an outfit in a game being censored when it crosses the Pacific. I don’t need to look beyond the borders of my own country to see that. Our infrastructure is crumbling, our access to health care is still inadequate, many of our public schools lack funding, and our political system is currently being put through a stress test that it might not pass.

However, this argument is still worthless. Because we aren’t the ones creating the controversy: it’s rather those self-appointed guardians of purity on Twitter, Reddit, and elsewhere calling for developers and creators to practice self-censorship and attempting to use public shaming tactics to get their way. This is an attempted intrusion upon what I see as the artist’s right to create and the consumer’s right to enjoy art. If they want to blame anyone for manufacturing a controversy that might distract from more important issues, they should blame themselves.

You should get a life/get out of your parents’ basement/etc.

I only include these lines because they and others like them are thrown around so often in arguments about erotic and pornographic content in anime and games as if they had any bearing at all. In politics, irrelevant personal insults thrown around wildly can sometimes lead you to victory (just look at our current chief executive for proof of that.) However, when we’re trying to get to the truth of a matter, they’re merely a distraction. They’re also effectively an admission that your opponent in the argument has nothing left, so you may as well quit the conversation at that point.

Even supposing that people living in their parents’ basements who don’t get out much automatically lose the argument (which makes no sense whatsoever) it’s worth mentioning that fans of anime, manga, and games that may sometimes include some spicy content are all types of people living in all types of situations. But no, please keep ignoring that fact. Just keep throwing those bullshit insults around. We’re all antisocial unskilled basement-dwelling man-children. Oh yeah, and we’re all members of the alt-right too. Every one of us!

Just let me brush tails in peace. That’s all I want, is that so much to fucking ask

But how am I supposed to take you seriously when you’re placing a screenshot from a porn game in your serious post about law and art?

Okay, maybe you have a point, hypothetical opponent.

Then again, this is part of the point I’m trying to make. I will admit that certain expressions may be so extreme that the risk they pose to society outweighs the value of allowing them to be expressed. As an example, let’s say a group of people wants to stage public orgies, right out in the open. You could make a decent argument that this counts as an artistic expression depending upon how it’s staged, but aside from the fact that such an expression would violate existing public decency laws, I don’t believe it’s right to subject the general public to such an extreme display. However, many of the expressions people take issue with are nowhere near that extreme hypothetical. If your plan is to banish all depictions of nudity from society, you’d better start going around all the art galleries in the country loaded up with cans of spray paint. And in any case, to demand the regulation of what a person is allowed to enjoy in the privacy of his or her own home, no matter whether it counts as pornographic — that’s a different matter entirely.

Anyway, what do you think, reader? Am I insane? That’s entirely possible. I’m just tired of the unbearable smugness of these knights of purity, those guardians of propriety who think they can just enforce their views without any meaningful opposition. As long as people are too squeamish to talk about erotic and pornographic content, the pro-censorship and pro-restriction camp will have the advantage, and they will use it. So let’s not be shy about the matter. Our arguments can and should always be well-reasoned and civil, but we shouldn’t feel compelled to blunt them just because we think we’re on the less socially acceptable side. If I even possessed a few remaining fucks about what society thought of me anyway, being a lawyer for the last few years has taken them from me.

And now that I’ve given my big Braveheart speech, I’m done. I know there are plenty of people out there saying the same sorts of things I’ve written here, and many more thinking them, so it’s not exactly like we’re a lonely bunch. It can be easy to forget that sometimes, though. I also wanted to expand upon what I wrote in that first post and fill out the “why” part of it that I felt was lacking there. I hope I was able to do that without rambling too much. Next time, I’ll probably be both calmer and more coherent. Until then. 𒀭

 

1 I may as well throw intentional harm towards animals in this category to expand it to all sentient beings — I’m absolutely not a vegetarian, but I also don’t like the idea of harming animals for mere entertainment. It’s not an especially brave stance I’m taking here, I know.

2 This is the same argument proponents of cannabis legalization like to use, and I agree with it in that context too. I just don’t talk about it here because it’s not relevant to the subject matter of the site. Neither is politics in general, except when it intersects with art as it does in this case.

3 If you’re wondering why US courts were applying UK law in this case, it’s because US law was originally based on the old English common law system, and so the courts and even Congress would sometimes use an English precedent to base their rulings and bills upon when they couldn’t find an American one. Many of our own common law standards can still be traced back to the post-Norman conquest English legal framework, though you’ll hardly ever find anyone using an English or UK precedent anymore in practice. It’s also why we have so many old Norman French terms in legal jargon along with all the Latin. And no, we’re not letting go of any of it. It might be the 21st century now, but in some ways our profession is still stuck in the 13th.

On anime, games, and obscenity

Listen, sorry.  I had planned to edit and post my first deep reads piece today, but I’m pushing that back a bit because I’ve been reading a lot about proposed “anime bans”, essentially restrictions of work based mostly on their sexual content, whether the sexual nature of that content is actual or perceived.  All this reading put me into lawyer mode, and now I can’t bring myself to write about anything else before I’ve addressed these controversies to my satisfaction and hopefully to the readers’ as well.  Because while there is truth in a lot of the stories going around, some of them may be misleading, causing unnecessary misunderstanding and anxiety.  I’m not the top legal scholar in all the land, not even close, but I thought I’d take the opportunity to clear up a few basic questions about the American legal concept of obscenity as it applies to the shows we watch and the games we play.  (As much as I’d like to, I can’t address questions about the legal codes or traditions of Japan or any other state because I don’t know them nearly well enough.)

Fair warning: while nothing on this site falls into the 18+ category, this post does obviously deal with adult content.  So if that’s not your thing, you might want to skip it and check out the next post I put out that probably won’t have to do with anime titties, etc. if my schedule remains as it is now.  Also, while I am an attorney, none of what’s in this post (or on this site in general) is intended to be legal advice or to create an attorney-client relationship with anyone at all.  Finally, most of the legal analysis here is pretty speculative (i.e. I had to pull most of it out of my ass because a lot of it involves issues that haven’t yet been resolved by the courts) so you can take what I write with however much salt you like.  Sorry for the long disclaimer, but I have to put it there.  Now on to the real fun.

supreme court bldg

This is a serious post about law, but there will probably be a few anime titties as well, all included within the appropriate context of course.

With the 2020 Tokyo Olympics coming up, all the normal, well-adjusted people in my country and other parts of the West have started paying more attention to Japan.  And they’ve seemingly just learned something the otaku/weeb set have known for decades: that Japan produces ten thousand metric tons of drawn pornography per year in the form of manga and doujins that are sold online and at Comiket, and that even some of their anime and video games contain lewd or borderline lewd content.

Apparently some of these people have a problem with this.  Every time a game is slated to be ported to the West and it might contain questionable content, the battles begin on Twitter and Reddit and everywhere else over whether they should be ported over intact or censored.  There’s even been talk about the United Nations attempting to restrict content in anime and related media through Article 2(c) of its Optional Protocol to the Convention of the Rights of the Child.  While the article seems to be well-meaning — it’s prohibiting the sort of illicit, immoral pornography that nearly everyone already agrees should be prohibited — it’s extremely broad in its language.  And if read broadly enough, it would also place some anime and game content into a legal gray area at best.  The Optional Protocol doesn’t single out anime or anime-styled games, but the connection is easy to make: both feature a lot of young-looking female characters, not to mention the 800 year-old fox spirit goddesses who sure as hell don’t look 800 years old.  Thousands upon thousands of people read these posts and articles and rushed to buy, download, and torrent Fate/kaleid liner Prisma Illya and The Helpful Fox Senko-san before the all-powerful UN forces in their black helicopters destroyed every last copy.

By order of the United Nations, all cute magical girl gifs will be hereby confiscated

These stories also mentioned that the United States, Japan, and Austria, while generally supportive of the protocol’s goals, refused to sign in part because they felt Article 2(c) was overbroad and would unduly restrict freedom of speech.  Not that it really mattered all that much — even if the US, Japan, and Austria had been pressured to sign this Optional Protocol, none of them would have been bound to actually do anything to follow up on their commitments.  Protocols of this type are less legally binding than an agreement between two drunk guys scrawled on a bar napkin.  And then the napkin got used as a coaster for a pint of beer, and the ring it created made parts of the agreement completely illegible.  That document would literally have more binding legal power than a protocol to a UN convention.

Still, it’s worth considering whether and how your favorite lewd anime or game series could one day be legally banned from streaming services and online stores.  As everyone who’s had an internet argument about free speech already knows, speech is generally protected from government prohibition or interference by the First Amendment to the US Constitution.  However, not all speech is protected.  Making a credible threat of bodily harm is an exercise of speech, for instance, but it falls into one of the court-created exceptions to constitutional protection of speech.  Another exception, the one we’re concerned with in this case, is obscenity.

The legal concept of obscenity has been around for a long time and typically applies to images, writings, and other works that are generally considered lewd, disgusting, or distasteful.  For the purpose of maintaining public morality, works that are deemed obscene also fall outside First Amendment protection and can be prohibited by law.  However, the definition of obscenity in the US has narrowed over time to the point that it now only applies to a few very clearly harmful types of material.  For an anime series or game to be found obscene, therefore, it would have to be pretty god damn immoral and probably demonstrably harmful somehow, or at least a court would have to think so.

Good luck explaining the concept of Nekopara to the court

But how do we determine what’s obscene and what isn’t?  Thankfully, the Supreme Court in the 1973 case Miller v. California provided us with an extremely problematic and vague legal test to find and separate out the obscene works.  Here’s the infamous three-pronged Miller test as set out by Chief Justice Warren Burger:

1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (meaning entirely sexual) interest;

2) whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and

3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

We don’t even have to read past that first prong to realize the Miller test doesn’t work anymore.  The idea behind it made some sense in 1973 — different places in the US have different standards of what constitutes offensively sexual material.  So, for example, the very same art installation displayed in Greenwich Village, NYC and then in Mobile, Alabama might shift from being not obscene to being obscene because the standards and norms in the locality surrounding that art have changed.  Today, however, the internet has turned the country, and to some extent the entire world, into a single “locality” in the sense that any content, no matter where it was created, can be accessed anywhere.  For this reason, the courts must now effectively use a national rather than a local standard in some contexts, even though the majority in Miller explicitly rejected the use of a national standard for obscenity.

This works in the fans’ favor, because a national standard is necessarily going to be slacker than a local standard for what’s deemed offensive.  And while that second prong is a bit vague (what exactly does “sexual content” entail?  How broadly should that be read if the state law defining it is vague?), the third prong of the test is extremely difficult to clear: almost every work created has “serious literary, artistic, political, or scientific value” of some kind.  Using the current standard, therefore, almost all anime and game content should pass the Miller test, at the very least on the basis that it contains serious artistic value.

Admittedly, there is a problem for the fans hidden in the language of the test.  Notice who’s applying these community standards: “the average person.”  Who the hell is that?  What’s an average person?  The legal answer is that it’s a kind of meld of a bunch of people picked off the street at random. Granted, that is a bullshit legal fiction made up for the sake of convenience. However, if an obscenity case ends up going to trial, guess who determines what that “average person” thinks? The jury, which is quite literally a bunch of people picked off the street at random.  And that’s at least a little scary, because you never really know what you’ll get with a jury.  On the other hand, the Supreme Court later found that the third prong requires a higher standard of review than that, which means greater protection for the speech in question.  Thank God for that third prong.

Some people think Kill la Kill is just fanservice, and some people think it’s a masterpiece. But what would the “average person” think?

I don’t mean to be an alarmist here. The free speech clause of the First Amendment hasn’t been eroded in the way certain other clauses to other amendments have. Freedom of speech is still one of the most closely guarded and strongest constitutional protections we have, and it’s backed up by a lot of precedent following Miller.  The fact that the internet is so damn full of weird pornography and screeds about how the government is run by evil lizard aliens is proof enough that we’re free to express ourselves in most any way we want.

However, that doesn’t mean the clause won’t be eroded in the future.  The religious right is still a politically powerful force in the United States, and they’ve shown their willingness to try to shut up speech that they consider lewd or blasphemous.  Remember the petition to Netflix to remove the “satanist” Amazon series Good Omens?  Not to mention the less stupid but still very stupid campaigns against the Harry Potter and Pokemon series in the late 90s.  Considering their great (and not entirely unsuccessful) efforts to break down the wall of separation between church and state also contained in the First Amendment, there’s no reason to think they have any special respect for the free speech clause.  Parts of the leftist and progressive movements are also trying to shame writers, developers, artists, and publishers into “cleaning up” their work and altering it to suit their moral sensibilities.1  While these groups are not generally pushing for government censorship, they are trying to create a chilling effect on art, and it’s not a major leap from that to calling for the imposition of legal restrictions on content.

So it would be wrong to assume things will simply continue as they always have.  There’s a reason groups like the American Civil Liberties Union and the Comic Book Legal Defense Fund still exist — it’s important to remain vigilant in protecting our rights and to not take them for granted.   Also, always keep in mind that “_ should be banned because I think it’s gross” is not a legitimate argument in favor of banning or censoring something.  Some people seem to think it is for the frequency they use it, but it most certainly isn’t.  Prove the material you’re trying to have banned fails the Miller test and have it found obscene by a court.  Nobody is arguing that genuinely harmful material shouldn’t be found obscene if it deserves to be placed in that category.2  If you can’t manage to get that ruling, however, all we’re talking about is a difference in taste.  And as the ancient Romans said: “In matters of taste, there can be no dispute.”

And as Senran Kagura producer Kenichiro Takaki said: Tits are life, ass is hometown.

I guess my point is that your lewd anime girls probably aren’t going anywhere, at least if you live in the US, but also that we shouldn’t grow complacent.  I’m also assuming that Japan won’t pass any serious restrictions on its own content, based partly on their answer to the UN’s Optional Protocol and partly on the fact that lewd anime girls are probably one of their biggest exports, and why risk that for basically no benefit in return?  I could be wrong in this assumption, but again, I’ll leave that issue to those who actually know something about Japanese law and politics.

So that was my combination legal treatise/angry rant.  I hope it was entertaining and/or enlightening.  If you have a question, a differing opinion, or a burning desire to call me insane or an idiot for what I’ve written, please post a comment below and we can get a discussion going. 𒀭

 

1 Full disclosure, as usual: I’m pretty much on the left myself, which is why it breaks my heart when other progressives rail against the shows and games I like as harmful or regressive just because they don’t fit their own views of political and social orthodoxy.  I’ve gone on about this before, so I’ll spare the reader here.

2 Edit: I shouldn’t say nobody is arguing this, because there are people who argue that the concept of obscenity should be scrapped entirely, allowing for every kind of sexual expression aside from those harmful types that are already banned by law. In fact, I like that idea myself. However, in the current social climate, I don’t think it’s realistic to expect that we can do any better than the Miller approach to obscenity.

The Seasonal Anime Draft: Cop Craft, ep 4

Welcome back to the hard-boiled sci-fi cop drama Cop Craft.  If I had any doubts about this series up until now, this episode got rid of them.  The first three episodes were just fine (janky animation in ep 3 aside) but they feel like a mere prologue now, because this is where Cop Craft seems to really get going.

The climactic final fight with the bad guy that isn’t a final fight at all and ends around minute four of the episode

Summary: The battle on top of that skyscraper gets resolved when Kei and Tilarna manage to (literally) disarm the powerful mage Zelada, who leaps off of the roof to his supposed death, but we know how these things work out.  Meanwhile, it’s revealed in a flashback that Leahyah (the fairy trapped in the bomb) helped Tilarna out in the past and that they’re friends, and then Leahyah somehow saves both Kei and Tilarna by sacrificing herself in an extremely confusing scene.

I really like this shot. Would be more touching if we knew more than ten seconds of backstory about Leahyah and Tilarna’s friendship, though.

Leahyah is dead, our heroes are alive, and their mission is now over because it basically ended in failure.  The one-time partners say goodbye to each other at the San Teresa docks, and Tilarna sails back into the sunset.  Except not really.  After a montage of Kei putzing around town for a while, he returns home and finds Tilarna lounging on his sofa watching TV.  Turns out she decided to stay in San Teresa and has officially joined the police department as Kei’s full-time partner.  And also as his roommate, because she never settled her dispute with that hotel from episode 2.

I didn’t expect the creators to write something that bears a resemblance to a real employment contract, but they did. Not bad!

We then get another montage of Kei and Tilarna on the job doing cop stuff, and then they discover the stolen corpse of a Semanian woman that comes to life with evil magic at the end of the episode and attacks Kei’s ex Cecil in the morgue.  But since Cecil and Tilarna bonded earlier that day over how much of a stubborn heartless jerk Kei is, Tilarna is there to save her new friend from the zombie.  And there’s yet another cliffhanger ending.

Analysis: Cop Craft tricked me into thinking it was going to be a show all about the conflict presented in episode 1.  Instead, it’s apparently going to be a sort-of-episodic cop show with sci-fi and supernatural elements, which I am extremely okay with.  I can see some viewers being disappointed by this turn — after all, the whole illegal fairy trade and mind-control plot wasn’t all that fleshed out before it was resolved (?) and neither was Tilarna’s relationship with Leahyah, so ending it so abruptly is a bit weird.  To me, though, what we’re getting now is just as good, if not better, than what we started with.  Also, big bad guy Zelada is almost certainly still around.  You know the rule when it comes to villains like him: if you don’t see him actually die, he’s not dead.  Tilarna herself even doubts that he’s dead, so we should keep an eye out for him.

This is how Tilarna answers the suspect’s invocation of right to counsel.

I’m also in love with Tilarna.  She’s both cute and terrifying.  Her partnership with Kei seems to be working out pretty well too, especially since this episode clued us in to the fact that Kei has some kind of magical connection with his pistol, like Tilarna has with her sword.  Though Tilarna’s total disregard of the suspect’s constitutional rights might cause the pair some problems, especially with their new supervisor.  The lawyer side of me took over halfway through this episode to try to add up exactly how much trouble Tilarna should be in after beating the shit out of a suspect to get him to talk, and also after cutting another guy’s finger off during a police raid.  Also strikes me as weird that she’s just living with Kei now without them even having to talk about it.  Do detective partners also usually shack up together?

Tilarna gets pointers from Cecil about how to deal with Kei.

I also really like Cecil.  I have to admit that I’ve never been as friendly with an ex-girlfriend (or ex-wife?  I never had one of those, but again, not clear which one Cecil is) as Kei is with Cecil, so good on both of them.  I hope she survives next episode.  I need more banter between her and Tilarna.  That zombie can eat her shitty lazy assistant though.

So I’m very positive on Cop Craft right now.  Again, I can see how some viewers might be annoyed by the sharp turn the show seems to have taken, but I’m happy with what we’ve got so far.  The animation quality is back too, so that’s another plus.  I guess it was just on vacation for episode 3.  Hopefully that was just a hiccup.

Really, as long as we get more Tilarna getting pouty about not being appreciated for her brutal approach to justice, I’ll keep watching.

Once again, see you next episode, and stay safe as always.

On physical copies, bonuses, and Google’s Stadia

This was originally going to be a review of Stella Glow: Song Magic, a five-track album (really more like an EP, clocking in at 22 minutes) that came as a bonus with the initial release of Stella Glow, a tactical RPG for the 3DS developed by the now-defunct Imageepoch and published by Atlus.  Storywise, Stella Glow seems to be Imageepoch’s take on Ar tonelico, because it shares a few themes with Gust’s series (“witches” who can control the elements through singing, and naturally, the witches are cute girls instead of your typical Macbeth old lady witches, because of course they are.) [edit: as user Mamahama very kindly points out below, Stella Glow takes inspiration primarily from other games the developer made before the AT series started.  My most sincere thanks for the correction.]

Note to Hollywood: if you ever start putting witches in movies again, this is what they should look like.  I know you won’t listen, just throwing it out there.

The problem is that I don’t have a whole lot to say about Song Magic.  All five songs on the album are ballads with some nice orchestration, and that’s about all I’ve got, though I do like the closer Ice World a lot.  Nothing here approaches the best songs on the Ar tonelico II albums I reviewed a while back.  That’s not a criticism of this EP, however – both of those albums set an extremely high bar to clear, and even if Song Magic doesn’t quite clear it, it’s still enjoyable.

After not being able to think of anything else to write on this subject, I started thinking about the very idea of owning a physical copy of a game, as well as the bonuses that come with special editions and preorders.  And then Google came out with more news about Stadia, the soon to be released streaming game service that people have been both praising and cursing, and so my thoughts turned to that.  Google recently released some Q&A material that’s meant to answer everyone’s questions about access to and ownership of games bought through Stadia, stirring up even more talk about it before its release.  It makes sense that people would have concerns about ownership in this context.  Unlike the movies hosted by Netflix and other streaming film services, games are interactive, and the right to return to a game months later with an old save file is one that we’ve been able to take for granted for over thirty years now.

While Google says they recognize this right in their latest Q&A, the fact is that they, not the end user, hold the keys.  Just give it a few minor changes to the terms of service, and then a few more, and a few more still, and dedicated Stadia subscribers could find themselves in a situation they didn’t realize they were bargaining for when they signed up.  This is what we lawyers call a contract of adhesion: the kind that you agree to when you click through the typical ToS boilerplate legalese that you don’t bother reading, because the language is insanely dense and convoluted and who has the time?  There’s no room for negotiation; it’s a take-it-or-leave-it proposal, and it’s almost always enforceable in court save some really unconscionable term of the “you owe us your firstborn child” variety.  Naturally, Google’s lawyers know this, and they will make sure they cover their employer’s ass by giving it all the leeway it needs. And if that ass-covering is at the expense of the end user, so be it.

When Google changes the ToS and you can’t do anything about it

And what about those bonuses I mentioned?  You might be thinking that digital bonuses are just as good as physical ones.  After all, a publisher can easily package a digital copy of a game soundtrack or a digital artbook with their game.  They do it on Steam all the time.  I’ve bought those packages on occasion.  Still, nothing beats owning a physical CD, and the same goes doubly for an artbook, one you can hold in your hands and read even when the power goes out (by flashlight or candlelight in that case, but still.)  Also, while digital bonuses are great options for indie developers and small publishers who wouldn’t necessarily be able to send out physical bonuses to everyone, the big guys presumably don’t have that problem.

This is part of the reason that I don’t believe the Stadia will kill traditional console and/or PC gaming as some people have suggested.  Stadia is a nice concept for casual gamers, and I don’t think it’s presuming too much to say they’re a big part of its prospective audience.  Maybe some competitive gamers will also find something to like in Stadia.  However, there are three massive subsets of the gaming population that all the pundits and sensational clickbait hack content creators are ignoring as usual.  First are our friends in economically developing countries and countries with government-mandated telecom monopolies, many of whom have garbage internet connections and can’t obtain the bandwidth necessary to use Stadia.  Second are those who want to mainly play singleplayer games without being forced to connect to the god damn internet the entire time.  And third are those who want to own physical copies of their games and get physical bonuses with those games as often as possible.  For these groups, I don’t think Stadia holds much interest, if any.  I should know; I’m part of both the second and third, and I have relatives in the first who have to deal with their shitty governments’ attempts to stop them from using Skype.

I don’t hate Google for offering up this service, mainly because I don’t believe it will change the face of gaming as we know it.  If you drew a Venn diagram of potential Stadia subscribers combined with the above-mentioned groups and weirdos like me who cared about getting that Stella Glow: Song Magic CD along with that bonus pinup of Hilda, the Witch of Destruction, it would look like an 8.  And despite what the clickbait-writing hacks would have you believe, there are a lot of us out there.

Or maybe I’m just a dumbass who refuses to adapt to this glorious new world that Google is about to show us.  What do you think?

Is this how I came off the entire time? Be honest

Megami Tensei #1: You’re not the hero of this story

Sometimes I won’t write anything for a week or two, and then in a few hours a few thousand words will spill out of my brain. This was one of those days, and the result is the start of a series on prominent themes in the Megami Tensei series of games and how I think they relate to life in general. I know, it’s a huge surprise that I’m writing about Megami Tensei. I only bring the god damn series up every other post I make. Anyway, I hope this mind dump makes sense to at least one person. It contains a few very general spoilers for Persona 5 and a lot of very specific story and ending spoilers for the original Shin Megami Tensei: Strange Journey.

It’s almost a cliche to say that we all like to think of ourselves as the heroes of our own stories. I recently had to attend a few events at my state bar association, where you occasionally get to hear some puffed-up language about the nobility of the profession of law. Law is a serious and complex profession, no matter what field you’re working in, and we are subject to real ethical standards (a fact that’s shocking to a lot of non-lawyers.) Perhaps as a result of this, there’s a tendency, especially among law students who don’t know any better, to equate being a lawyer with something like being a knight. We do take an oath upon being sworn in, and some aspects of discovery and trial could be compared to the dance of a duel between two champions. Otherwise, the reality of the practice is quite a bit dirtier and more mundane than that. (At least practicing law doesn’t usually result in someone getting axed in the skull.  But I’m still never returning to the endless hell that is the world of litigation.)

This kind of romanticism affects many more areas of life, public and private, professional and personal. And, of course, we see it in video and PC games. Many of us, myself included, play games to escape from reality, so it’s only natural that we want to play the role of the hero. There’s a reason Joker from Persona 5 is such a popular character that he made it into Smash, and it’s not because of his amazing dialogue. His being a silent protagonist helps, in fact, because the silence makes it easier to pour own your personality into that empty vessel, a point that a lot of people who complain about the Persona games’ silent protagonists seem to either miss or ignore.

And who wouldn’t want to play one of the heroes in Persona 5? Joker and his Persona are references to the fictional suave gentleman thief Arsène Lupin, and his Phantom Thieves as a whole are a callback to probably fictional romantic bandits like Robin Hood and his merry men of Sherwood Forest, only in a modern urban setting. Yes, Akira in the real world got a raw deal as a wrongfully convicted felon undergoing probation, but Joker in the world of shadows is a dashing hero. That’s not to mention the fact that even in the real world, Akira can romance almost all of the women around him.* Persona 5 does try to address serious social problems like official abuse of power, but in the end I see it more as an escapist fantasy than a commentary on reality. Not that there’s anything wrong with that. God knows I need my escapist fantasy.

Yeah, this is 100% fantasy…

You can’t live in the escapist fantasy forever, though. Eventually, reality will catch up with you. There’s another game in the Megami Tensei series that emphasizes this point, and it’s the infamously difficult dungeon-crawler RPG Shin Megami Tensei: Strange Journey.**

In most of the endings of mainline Shin Megami Tensei games, the silent protagonist is not really the hero of his own story. He typically ends up assisting the head of one of the extremist factions build its own paradise based either upon the principles of the Law alignment or the Chaos alignment. The word paradise should really be in quotes, however. A Law ending usually leads to the direct domination of human society by God, complete with a nice “cleansing” to get rid of the unworthy, which is most of us, while a Chaos ending usually leads to the destruction of human society by a horde of demons and the violent murder of the weak, which once again happens to be most of us. The same is true of Strange Journey, in which you play another silent protagonist the fans have dubbed “Space Marine”, a member of an international strike/research force sent into a growing mass of dark energy covering most of Antarctica. Turns out said mass is swarming with demons (what a surprise!) which has gotten so bad that Mastema, a mysterious black-winged angel, is also there fighting the demons under the direction of God himself (or so he claims, anyway.)

Never trust an angel in an SMT game.

Most of these mainline SMT games also have characters who represent the Chaos alignment and the belief in absolute liberty, following the lead of Lucifer, and a character who represents the Law alignment and submits body and soul to whatever avatar God happens to be using at the moment (often, but not always, the Old Testament YHVH, complete with his jealousy and smiting and weird mood swings.) And behold, two of your fellow crew members, Jimenez and Zelenin, take these roles and undergo a demonic and an angelic transformation respectively (equally monstrous transformations in the context of the Megaten universe, because both end up completely losing their humanity as a result.) Out of the three available ending paths, two involve joining your considerable power with Jimenez or Zelenin and bringing about either a new Earth ruled over by massive demonic worms that have apparently devoured most of humanity or a new Earth in which part of humanity has technically survived, but in a brainwashed state in which all people everywhere are constantly singing in praise of the Lord forever while standing on top of giant gray windowless buildings.

Yeah, I don’t… I don’t know about this.

Watching these endings probably won’t make you feel like much of a hero for helping to bring them about.*** They might even make you angry. This is what I was fighting for? you might think to yourself. Generally speaking, the closest you can get to a “heroic” ending in a mainline SMT game is by taking the Neutral path, which rejects both God and Lucifer in favor of humanity’s control over its own destiny. Perhaps for this reason, both getting onto and completing the Neutral path is usually ridiculously difficult. Maybe that’s the price you have to pay for opposing the wills of gods and renegade angels.

It’s not too hard to find analogues to God and Lucifer in humanity itself, either. Replace all of Earth with a single country, God with an oppressive tyrant ruling over it and Lucifer with a violent revolutionary leader trying to oust him and you’ve got the basic plot of an SMT game, and one that occurs in the real world all the time. The only real difference between the two scenarios is that while the victorious revolutionary leader often transforms into the new oppressive tyrant, the Lucifer of Megami Tensei has no desire to rule over humanity because that would run against his belief in absolute freedom. But even in the Chaos ending, the soil is ripe for the growth of a new absolute ruler who can win power through strength and charisma, creating a constant cycle of lawful tyrants and chaotic revolutionaries that overthrow them. Even the Neutral ending always feels more like a temporary fix than a permanent one – the powers representing the extreme alignments might go away for a while, but they never truly die. God and Lucifer always return in some form to submit humanity to more suffering. Not exactly the fun “hero slays the dragon and saves the princess” kind of story, and certainly not satisfying if you’re looking for a happy ending.

You’d think if Lucifer took the trouble to genderbend that he’d also try to come up with a less lazy fake name than this.

Maybe that’s just the point – there are ups and downs in life, but there is no ultimate happy ending. There may not even be an ending at all. The Abrahamic tradition, the one I’m most familiar with by far, views time in a straight line starting with with creation and the Garden of Eden and ending with the apocalypse and Judgment Day. But in other traditions, time is viewed not as a line but as a circle. It’s not evident in Strange Journey, but other mainline SMT games adopt this cyclical view of time. It’s not that heroes can’t be born in that cycle – heroes simply can’t break the cycle. Balance between Law and Chaos is never achieved permanently, and the resultant suffering continues forever because of it.

My own country is going through a political upheaval right now. Our head of state and government is contained in one person, and that person is definitely incompetent and possibly traitorous. We Americans like to think we’ve somehow earned stability and prosperity, and even that God himself guarantees said stability and prosperity. When I was growing up in the 90s and early 2000s, “God bless America” was a mandatory line in every politician’s speech, whether Democrat or Republican, almost as if by repeating this line over and over we could keep God’s blessings forever.

You don’t hear that line so much anymore. My own millennial generation is less traditionally religious than past generations, but there might be more to it than changing demographics. I think there’s a sense now that we could lose everything we have, and perhaps that God, if he even exists, doesn’t care. Perhaps he doesn’t even care if all humanity burns itself out because of our inability to handle the technology we’re developing. If that’s our ultimate fate, there isn’t a hero who can permanently prevent it. That’s the message I take from Strange Journey. It’s a depressing message, but an honest one.

Or maybe I’m just a depressive pessimist.  Yeah, that’s probably it. 𒀭

 

* I guess this point isn’t applicable to gay men or straight women. I’m not sure how well lesbian players can put themselves in Akira’s place either, him being a man and all. People have suggested bringing the female MC option back to a Persona game after P3P’s FeMC, or the possibility of at least one homosexual relationship (which did exist in implied form in Persona 2: Innocent Sin, but nobody seems to remember that game exists.) However, that’s a subject for a different post (and for countless, endless forum/imageboard/Twitter fights.)

** I technically haven’t finished this game, but I’ve gotten all the way to the absolute final Neutral route boss.  Yes, I’m pretty lousy.  I swear to God (or YHVH or whoever) I’ll complete it one day, just out of spite.  I made it all the way through Horologium, for fuck’s sake.

*** Depending upon your religious upbringing and how well it stuck, the Law ending in Strange Journey might seem like a good one to you. I don’t think Atlus intended for it to seem like a good ending but rather to be a mirror image of the Chaos ending. But if you think you’d enjoy singing hymns on top of a giant building for all eternity, more power to you. Just don’t make me join in. Well, I’d certainly be one of the unclean humans who gets banished to the outer darkness anyway, so I guess it’s a moot point.

An open letter to my friends in the practice of law

Today I’m doing something I’d typically never think of doing: showing some goodwill to my fellow humans.

What a ridiculous thought

Okay, I’m really not that bitter and miserable all the time. But sometimes I am, and it’s easy to forget at those times that I rely upon other people, just as the rest of us do. The most excellent Irina from the site I drink and watch anime (who also happened to take one of the best ideas for a site name that I didn’t think of myself) reminded me of this when she nominated me for the Blogging Chums Award established by one beams19. The rules follow:

This may seem like a bit of an odd award but I think it’s so important to tell the people closest to us how much we care about them, and in a world that is so full of hate and division, it’s the little things we do that can help make a big impact – so go tell someone you love them!

This award isn’t compulsory by any means but if you decide to take part, it would mean the world to me. I wonder if there will ever be a day when I’m scrolling through WordPress Reader and I see the Blogging Chum Award floating around on other blogs!”

The Rules:

Be sure to use the award image! (note: made by the author of Daring to Impress, which seems to be focused on fashion and such)
List the rules & about paragraph!
Thank whoever nominated you!
Write a letter to someone who means a lot to you to spread some positivity around the Internet – anyone will do!
Nominate 5 more people for the award and go let them know about it in their comments!

 

That’s some challenge. I could certainly thank any one of my fellow writers for their support and for doing what they do, and I do want to give my thanks to them. As the title suggests, though, there’s another group of people I want to thank today: my friends at the bar.  (The legal bar, not the bar you drink at, though I sometimes go to that kind of bar and meet friends there.)  I’m certain none of them will read this post, but if any do out of pure coincidence, it would make me happy, even if I am maintaining my anonymity here.

The practice of law is rough, frustrating, and dirty for many attorneys.  Some of us work in family law representing husbands and wives in the process of divorcing, splitting goods and property and the custody of children.  Some of us represent clients before administrative agencies with massive backlogs.  Some of us prosecute criminal defendants and some of us defend them in a criminal justice system that often seems twisted and backwards and stacked against the poor and working people, despite our stated standard of justice for all.  A few of us – fewer than most people realize – work at large firms for corporate clients, making big salaries but billing unbelievable numbers of hours per year, to the point that our free evenings and weekends are reduced or vanish altogether.  And 99% of the law is extremely unglamorous, no matter what part of it you practice.

“Counsel, please stop shouting and pointing at everyone.”

We all have one thing in common, though: we’re all subject to more or less the same rules of ethics, and we all bust our asses to make our clients and bosses happy.  And sometimes the effort required to perform the necessary work and maintain our ethical standards causes a lot of stress.  There’s a reason law is one of the highest-ranked professions in instances of depression, alcohol and drug abuse, and suicide.  I’ve gone through experiences in my brief time as a lawyer that made me seriously question my decision to go to law school and sit for the bar.  Our own state bar association is finally acknowledging the problem, but aside from a help line and a referral program to mental health professionals, it doesn’t offer much in the way of aid.  And to be honest, it can’t – this profession is what it is, and there’s only so much you can do about the level of stress it causes its practitioners.

That’s why I’m writing this post to my friends in the practice of law.  I won’t lie – this profession does contain assholes, blowhards, and backstabbers.  But it also contains a lot of faithful, trustworthy, and classy people.  From my experience (and despite popular opinion) the second type of lawyer is more common than the first.  The friends I made as a law student and an attorney have given me a great deal of help with their support and advice, perhaps more than they know.  To those friends, I can only give my thanks and express my hope that I will always rank among the second type of lawyer and not the first.

As for the nominations – this is where I hit a wall.  As I’ve said before, this blog is a bit of a dead end since I’ve been out of the networking loop for the last, uh, five and a half years or so.  That’s something I’m trying to change, but for the time being, I will go ahead and tag The Otaku Judge and also Pete over at MoeGamer – no pressure, of course, and I haven’t seen the good Judge around for a while, but hopefully he’ll make his return soon.

Games and the law #1: Nintendo et al. v. Soulja Boy (maybe)

Since I’m a lawyer and I like video games, I figured it would be a good idea to start a new series in which I analyze hot legal issues in the gaming world. My focus will be on American law, since that’s what I’m trained in, though I won’t ignore foreign law when it enters the picture.

This album sucks. I give it a 1. That counts as a full review, right?

In this first edition, we’ll be taking a look at a real gem: Soulja Boy. It’s long been an axiom that Soulja Boy’s music sucks, so much so that scientists are still working around the clock to determine how it hasn’t yet created a black hole large enough to swallow most of the inner Solar System. But this post isn’t about Soulja Boy’s music – it’s about his possible lack of knowledge of copyright law.

I don’t blame a guy for not understanding the ins and outs of US copyright law. It’s a complicated field. I do blame a guy, however, for not at least understanding that selling a console packed full of ROMs that are indisputably the intellectual property of first- and third-party publishers without a license to do would amount to criminal piracy under United States law. I assume Soulja Boy has attorneys to deal with the protection of his own intellectual property who are available to advise him of that. Maybe his legal team secured licensing agreements with every one of the copyright holders of the supposed 800+ preloaded games on his SouljaGame console and the supposed 3,000+ preloaded games on his SouljaGame handheld. That’s entirely possible, and I’m not saying it didn’t happen. But considering how defensive our dear Drako has been getting on Twitter… well, just read the following:

In a now-deleted tweet, Soulja Boy also noted that he’s “not afraid of Nintendo” nor of “faggot nerds” (his words, not mine.)

Not really the kind of thing you’d say if you had secured a licensing agreement with Nintendo, is it? Again, maybe he did and he’s just acting like a dick on Twitter for no reason.

Hey, to change the subject completely, were you wondering what the United States Code has to say about monetarily profiting off of someone else’s intellectual property without a license from the copyright holder? 17 USC § 506(a)(1)(A) states that “[a]ny person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed for purposes of commercial advantage or private financial gain.” The statute requires a finding of willful behavior – basically meaning that the subject of prosecution knew what he was doing and intended to do so – but establishing knowledge and intent in a case like this isn’t too difficult. And what kind of punishment does section 2319 provide?

(b) Any person who commits an offense under section 506(a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

The above-mentioned fine is set forth in 18 USC § 3571(b)(3) at not more than $250,000.  None of this counts the civil penalties that can be levied against the copyright violator in a separate proceeding.

Sorry for going off on a totally unrelated tangent like that. I just thought it was interesting.

By the way, these “SouljaGame” lumps of plastic dogshit seem to be pretty much identical to the myriad bootleg multigame consoles and handhelds that are manufactured and sold in Chinese and southeast Asian markets. Those systems are definitely illegal to sell, and the only reasons they continue to sell are the sheer number of different types of bootlegs sold and the difficulty of suing/prosecuting violators in the countries they flourish in. Hell, they even sell on Amazon. Like this fifteen dollar handheld containing hundreds of NES ROMs. There’s no way Nintendo signed off on this, but I can’t imagine they care too much about some podunk company selling crappy cheap handhelds with 30 year-old games on them, even if they are Nintendo properties. Soulja Boy’s products, on the other hand, have garnered attention all over the world. And if that sales figure of five million Soulja himself cited on Twitter is anywhere close to accurate, I can’t believe Nintendo (or SEGA, or EA, or Activision, or fill in the blank) is going to ignore them.

Just to be clear, I’m not saying that Soulja Boy is a pirate. I am legally allowed to call Soulja Boy a talentless asswipe, because that’s a statement of opinion and not a statement of fact or a legal conclusion. But I’m not saying he’s a pirate. Yes, it seems like he’s profiting off of the sale of what looks suspiciously like a pair of bootleg game systems containing a few thousand games, but again, it is entirely possible that he and his legal team ensured everything was legit by securing licensing agreements with each one of those games’ copyright holders. Here’s hoping they did for his sake.

Retrospective: After Dark

When I set up a Windows 98 virtual machine for the purposes of starting my godawful SimCity 2000 series, I also picked up a few different .iso files to run on it.  One of those wasn’t a game, but rather a collection of screensavers bearing the title After Dark 4.0 Deluxe, released in 1996 by long-defunct developer Berkeley Systems.

After Dark 4.0, which also contained a collection of screensavers from older versions.

What’s the big deal about a bunch of screensavers, you might be saying to your screen.  The big deal is that screensavers were very much “the shit” back in the mythical period of the late 1980s and early 1990s, when flat-screen computer monitors were unheard of.  At that time, everyone used CRT monitors, great bulky heavy things that made a satisfying smashing sound when you dropped broken ones out of a twelve-story window into an empty alleyway.*  The primary trouble with the CRT, aside from its weight and size, was the fact that images left on the screen for a long enough period of time would become “burnt in”, leaving faint shadows of themselves behind even when the screen was turned off.

In order to prevent this, the first screensaver was developed and released in 1983.  This screensaver and its immediate successors simply made a screen go black after several minutes of no activity, preventing the image of the desktop from being burnt into it.  By 1989, however, Mac and later PC users could avail themselves of After Dark, a program that contained a whole collection of creative, colorful, and sometimes bizarre screensavers. They were often customizable and occasionally even interactive – a few contained pretty fun mini-games. After Dark quickly became a massive hit – sort of the pre-internet version of going viral, in which more and more screens seemed to be running After Dark screensavers.  The 4.0 release was the final one, however; by the late 90s screen burn-in wasn’t really so much of a problem, and people apparently decided they were happy enough with the default Mac and Windows screensavers.  Berkeley Systems was sold soon thereafter and eventually folded.

Since screen burn-in certainly isn’t a problem for me today, on my flat screen running VirtualBox, I downloaded the After Dark 4.0 .iso file for entirely nostalgic purposes.  And since this is my god damn game review website, I can write a quasi-review of something that isn’t a game if I feel like it, and I do.  The following are my favorite After Dark screensaver modules, loosely ordered:

Bad Dog!

This module features a spotted black and white dog that jumps onto your desktop and starts digging holes, tearing components of your computer out, and making a complete mess of things.  I enjoyed watching this dog utterly destroy my family computer at home, mainly because the destruction was purely cosmetic and temporary.  I can imagine a few old folks panicking at this screensaver, though, if they didn’t know quite how it worked.  A nice prank to play on Grandpa, maybe.

For some reason, Bad Dog! turns my desktop red and blue on VirtualBox.  I don’t know why.  The screensaver isn’t supposed to do this.

Puzzle

Puzzle also wrecks your desktop, this time by turning it into a sliding-block game that never ends.  This is yet another good potential “let’s prank Grandpa” screensaver, though he’s probably caught on by this point.  I always wondered about whether the puzzle might somehow return the desktop to its original state at some point.  The odds of that happening are probably incredibly small.

Confetti Factory

A factory full of steel bars and conveyor belts collects falling confetti that builds up into multi-colored mountains.  Every once in a while, the factory staff goes on break, and ducks cross the screen while quacking.  Like many of the After Dark screensavers, it doesn’t make sense, but it is relaxing to watch for some reason.

Rodger Dodger

Rodger Dodger isn’t so much a screensaver as it is a game.  You are the purple-green morphing soccer ball, and your object is to get through all 20 levels by collecting the green squiggles and getting to the goal while avoiding the spiky hazards that move either in one direction or randomly around the game board. It wasn’t anything special really, but it was surprisingly fun for a mini-game that came bundled with a screensaver collection, and I’m sure many thousands upon thousands of bored, dead-inside office workers wasted some company time with it.  Just make sure to point your screen away from your boss and facing a wall so he can’t catch you goldbricking.

Rat Race

Rat Race is not a simulation of the soul-draining, suicidal-depression-inducing competition for material goods and meaningless honors that our society demands of us all, but rather of a literal race where rats are the contestants.  It’s fun to bet with your friends on which rat will win, and then to scream at the screen when it turns out you picked the dipshit rat who doesn’t understand that he’s supposed to run in one direction around the track instead of running in circles and grooming himself.  Damn it, Doug, what are you doing?  I bet five dollars on you.

Flying Toasters

Yeah, of course Flying Toasters.  Flying Toasters is maybe 99% of what people remember about After Dark and the company that developed it.  A flying toaster is on the box of the physical copy of After Dark 4.0 that I don’t own and was more or less the mascot of its developer.  The image of the flying toaster was featured in the 90s drama Beverly Hills 90210, and a band that somehow still exists and is touring named themselves The Flying Toasters.  The flying toasters even inspired a lawsuit against Berkeley Systems by members of the 60s-70s band Jefferson Airplane, who complained that the image of a silver toaster with wings was too similar to the winged toaster on the cover of its 1973 live album Thirty Seconds Over Winterland to not be a violation of its copyright. (They lost.)**

There were at least three or four versions of the Flying Toasters screensaver, each one more complex than the last.  The first was pretty simple – just a bunch of toasters with wings flying through a black sky alongside some flying pieces of toast.  By 4.0, the newest Flying Toasters screensaver included baby toasters, speeding toasters being chased by police toasters (complete with red sirens), toasters juggling pieces of toast between each of their compartments, toasters performing loop-de-loops and barrel rolls, and even bagels.  I prefer the simpler versions, myself.

Starry Night

My favorite screensaver ever.  Starry Night was on the very first After Dark release in 1989, and it was one of the most commonly used together with Flying Toasters.  Yellow pixels blink into existence eventually forming a city skyline against the night sky, full of multicolored stars, with an occasional falling meteor.  You can adjust the height and number of buildings on screen, which generate randomly.  Very simple, but very nice and relaxing to watch, especially on a dark night.

Unfortunately, screensavers are no longer much of a thing – who needs After Dark to waste time with at work when you have the internet?  Especially now that we have smartphones that the boss can’t prevent us from using.  Still, these were a small part of my childhood growing up in the 90s, and I felt like giving them a proper tribute.  If you’re interested in playing with these old screensavers, you can find a copy of the .iso file here.  You can also buy a physical copy online if you feel like paying someone for their old disc.  You’ll probably need to set up a virtual machine, though – I don’t think there’s any way in hell any modern operating system will run it.

* This is purely hypothetical and not something that we did on a drunken dare one night when I was in college.

** Jefferson Airplane v. Berkeley Systems, Inc., 886 F. Supp. 713 (N.D. Cal. 1994).  The court found that Jefferson Airplane could not properly bring a lawsuit against Berkeley Systems on the basis of copyright infringement because they hadn’t registered the image of the flying toaster on the cover of their album with the U.S. Copyright Office.  In general, copyright can be established without registration, but a suit for infringement can’t be sustained without it.  See 17 U.S.C. § 411(a).

Atlus places severe restrictions on Persona 5 streaming and recording; the internet loses its collective shit

Yesterday, on April 4, Japanese game developer and publisher Atlus finally released Persona 5 in North America after two and a half years of delays. This much anticipated release came along with an announcement from Atlus forbidding the public display through either posted videos or live streams of spoilers, boss battles, or of any part of the game beyond the in-game date of July 7 (about three months from the game’s starting date, and probably about a third of the way through the story.) Both Youtube and Twitch are widely said to be on board with this policy, so if that’s true, punishments for rule-breakers will presumably get doled out in the form of bans.

Atlus’ policy is now causing much wailing and gnashing of teeth on the internet among people who had been looking forward to stream or to watch streams of Persona 5. This decision doesn’t affect me personally – I don’t stream because I’m not any good at games and I can’t add interesting enough commentary to make it worth anyone’s while to watch. And I was not planning to watch a stream of a game that I’m already playing myself. But I do find the drama surrounding Atlus’ decision really interesting. A lot of people are angry at Atlus, and some of them have been arguing that Atlus shouldn’t be able to prevent the streaming of Persona 5. The term “fair use” has been thrown around a lot.

So first of all – does Atlus have the law on their side in this case? The answer is almost certainly yes, at least according to US federal copyright law. Atlus holds the copyright to Persona 5, and outside of certain exceptions it can freely enforce that copyright to prevent others from using its own work to create their own public performances.  But what about fair use? Fair use is an exception to the enforcement of copyright that applies to the use of existing works by a non-copyright holder for limited purposes. The four factors considered by courts to determine whether a work or performance is covered by fair use are listed in Section 107 of the Copyright Act:

(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.

There seems to be no case law establishing any kind of precedent to apply to Let’s Play videos or streams, but we can at least apply the plain language of Section 107. When we do that, we find that the law is very much in the favor of Atlus here. The second and third factors weigh heavily in Atlus’ favor. (2) deals with the amount of creativity that went into the original work, which in the case of a video game, especially one as long, complex, and unique as Persona 5, is extremely high. Let’s Play videos and streams tend to run through entire games, so the same goes for (3). And the first factor weighs in Atlus’ favor if the video or stream is monetized through ad revenue or if the streamer is using his playthrough of Persona 5 in part as a way to attract paid subscribers and to gather donations.

The only factor that’s not clearly in Atlus’ favor is the fourth one. It’s not obvious that a heavily streamed game will sell fewer copies than a game that isn’t widely streamed, all other things being equal. In fact, you could just as easily argue that a heavily streamed game will attract more interest and result in higher sales. NieR: Automata was streamed like crazy and that game broke a million sales just over a month after its release. Obviously those streams didn’t have too terrible of an effect on the game’s sales. (Then again, maybe the exposure of cute android girl protagonist 2B’s butt had something to do with the high sales too.)

In any case, after reading Section 107, I would bet money that almost any court applying this test would find in favor of the copyright holder and would not find fair use, especially if the use of the copyrighted material is for commercial purposes. And while a Let’s Play video series or a stream might qualify as a derivative work under US copyright law, that derivative work has to be authorized by the original copyright holder, in this case Atlus. And Atlus is clearly not interested in authorizing shit right now.

Going to federal court also costs $$$$$$$$$

Atlus very likely has the law on its side. But even so, was the severe restriction on recording and streaming Persona 5 a wise move? And was it wise to wait until the day of the game’s release to make that announcement? And was it wise to pretend that the stream restrictions are about avoiding spoilers, when they’re obviously about Atlus trying to sell more copies out of a fear that streaming would hurt their sales?

Will Atlus end up pissing away the goodwill it’s gained over the years in exchange for a possible short-term boost in sales?  That’s a risk for Atlus to take if they choose, but I’d hate to see the company go down the same “fuck the consumers” path that certain other developers and publishers have, because Atlus makes games that I like. I’m already five hours into Persona 5 and it’s really good so far. If P5 keeps up the pace throughout I’d recommend it just as much as I would P3 and P4 to anyone, provided they don’t hate turn-based RPGs or games that are too anime.

The way things are going, though, there might very well be a test case in federal courts about recording or streaming games online some day soon. And maybe that test case will involve Persona 5.* That’s serious publicity for the game, but probably not the kind Atlus intended. Even if the law is on their side, good sense might not be. 𒀭

*Okay, probably not.  But it sounds good, doesn’t it?  Atlus v. Weeb Twitch Streamer et al.  It could be a landmark case.

Edit (8/23/18): In the end, Atlus barely even enforced the stream ban.  I watched a guy off and on who played the whole game through to the true end on Twitch and never got slapped for it, and last year there were a ton of people streaming the game on Twitch with presumably no consequence (except perhaps for DarksydePhil, who reportedly did get slapped by Atlus, though maybe they knew how much of a complete knob he is.)