Thursday, February 25, 2016

Don't Cry For Me, Axanar

“The defense seems to have been prepared according to the old rules. ‘If the facts are against you, hammer the law. If the law is against you, hammer the facts. If the fact and the law are against you, hammer opposing counsel.'”

- from Golden Book Magazine, as cited by

When I was in Ireland over New Year's, I was introduced to Star Trek: Axanar, a 20-minute long fan film that was made as a proof-of-concept of a potential, longer, fan-film to be crowd-funded through Indiegogo. The fan-film is a faux-documentary of the Four Years War between the Klingon Empire and the nascent United Federation of Planets, and features the role of Garth of Izar, a legendary Starlet captain and Star Trek Captain James T. Kirk's hero, in preserving the Federation by defeating the Klingons.

You'd think I'd be excited about this. After all, I'm not excited about the current direction that J.J. Abrams has taken the Star Trek franchise, so you'd think a return to 'classic Trek' style storytelling would excite me. And, thanks to advances in CGI compositing and filmmaking, the special effects sequences actually look really good when compared to original series Trek, so you'd think I'd be OK with that, too.

You'd also think I'd be mightily upset with the decision of the Star Trek rights holders -- Paramount and CBS -- to bring a lawsuit against the makers of Axanar, alleging numerous violations of copyright in a number of different ways. If successful, the lawsuit would effectively shut down production of the full-length film and guarantee that it would never see the light of day. Big media corporations, using the threat of intellectual property rights to crush independent creators? You'd think I'd be all over that.

After watching the short film, though, I was left cold. Not because of the film itself, I should point out -- the production seemed professional and even made use of some professional and recognizable acting talent. No, I was left cold mainly for two reasons, one of which that it was patently obvious that if this thing was going to be made professionally, it wasn't going to survive.

The second, and more important reason, was that the story just didn't feel like Star Trek to me.

The short film is basically a series of monologues; scripted interviews with a number of Federation captains, including Garth, as well as one Klingon commander and the Vulcan diplomat who was involved as an intermediary between the two sides. They describe a scenario where the Klingon Empire doesn't have any respect for the Federation as a fighting force, then develops a super-weapon in the D7 Battlecruiser that threatens to tip the balance of power permanently in the Klingons' favor, until Garth helps the Federation hold off the Klingons until the Federation can deploy the Constitution class starship that would even the score and convince the Klingons that the Federation were worthy opponents. As stories go, it's pretty good and has the potential to be interesting, though it's a bit too military-focused for my taste. (More on this later.)

My biggest problem with the story is that almost none of it is actually supported in Star Trek canon.

Garth of Izar is an actual character -- Kirk meets his old hero in the original series episode "Whom Gods Destroy", when he encounters Garth after the latter's descent into madness and imprisonment in the Elba II asylum, and the Battle of Axanar was a thing that happened in the Star Trek Universe. But it didn't happen during the Four Years War, because the Four Years War wasn't a thing that happened in any Star Trek television or movie episode. In fact, it's not entirely clear who the Four Years War was fought with; the canon history of Star Trek cites that the Romulans hadn't yet re-established contact with the Federation following the establishment of the Neutral Zone a century earlier -- and wouldn't until the original series episode "Balance of Terror", while the Federation and Klingon Empires had been at war since first contact in the mid-22nd century, long before the events of Axanar. (This is noted both in the original series, during the classic episode "The Trouble With Tribbles", as well as in a Star Trek film, "Star Trek: First Contact", where Jean-Luc Picard also notes the disastrous first contact with the Klingons.)

Here's where things first begin to get wobbly -- the source for the idea that Garth's battle was against the Klingons comes from a role-playing game sourcebook. The idea that the D6 was replaced by the D7 also doesn't occur in Star Trek canon, as the D6 never actually appears in the original series. This idea appears to come from another game, Star Fleet Battles, yet in that game, the D7 is a mere incremental improvement over the D6, with the D7 adding a couple of extra phaser banks and a couple of extra power plants to power them. The idea that the D7 is some kind of massive upgrade over the D6 is complete fabrication, as the only (non-canon) source that ever defined the D6s capabilities defined it as being almost identical to that of the D7.

So, Axanar is playing fast-and-loose with the Star Trek canon to tell a good story. Is that such a crime? Well, it is if the story ends up not being as good as it should be. After all, even though every Star Trek series features Starfleet as a military organization, the series almost never features militaristic stories. If anything, the original series went out of its way to avoid glorifying war and war stories, which while a product of the time of the show's production, also became a hallmark of Star Trek storytelling. (During the Next Generation series, for example, pretty much every plan thought up by the warlike Lieutenant Worf, the Klingon serving in the Federation, ended up being a Bad Idea.) Axanar, meanwhile, wants to follow in the footsteps of their beloved Four Years War RPG sourcebook, dedicated to Robert Heinlein and Joe Haldeman, both writers of hard, militaristic SF. While Heinlein certainly serves as an inspiration to Star Trek, a story written by Heinlein is not, to my mind anyway, a Star Trek story, and I can't say I'm terribly excited to see it.

Not that it's likely I ever will see it, given the lawsuit.

The original complaint explains why the attorneys for Paramount and CBS believe that Axanar rises to the level of work that infringes on Paramount's and CBS's copyrights in Star Trek. It is in the response to that complaint that we finally reach the point mentioned in the opening quotation.

First, let me be blunt -- though I am neither a lawyer or a judge, there is no chance that this lawsuit ends well for Alec Peters and Axanar Productions. Copyright in the United States includes the exclusive right of the copyright holder to prepare or assign the preparation of derivative works. There is zero chance that the court finds that Axanar is not derivative of the existing Star Trek material -- the entire reason that Axanar is popular among fans of classic Star Trek is exactly that Axanar is trying to invoke both the feel and the environment of classic Star Trek. Characters, worlds, and ships are taken from the Star Trek canon. This is not Galaxy*Quest, which used the tropes of Star Trek to both parody Trek and to tell a very Star-Trek-like story.

With that said, while the Axanar defense is likely futile, that doesn't mean it is useless. The argument as to why the court is supposed to dismiss the suit against Axanar boils down to two things: first, that the plaintiffs don't provide enough detail about the ownership of their copyrights to identify which entity owns which copyright and which copyrights are being infringed, and second, that without an actual film to analyze as to the nature and character of the 'borrowing' from the original work, the court cannot determine how much Axanar would actually infringe on Star Trek's copyright. Neither of these will succeed, but each raises valid points that may require CBS and Paramount to file an amended complaint to address those points.

In the first defense argument, the defendants raise the argument that the plaintiffs have not shown a chain of title to demonstrate which entity owns which copyrights, and observes that it is implausible that both Paramount and CBS own all the copyrights jointly. This is significant because the entities involved in the production of Star Trek through the years have morphed and changed as they have acquired, been acquired, and been spun off from other corporate entities. You might think, since CBS is a television network and Paramount is a movie studio, that CBS would thus own the copyrights to the television series and Paramount the movie rights, but it's not quite that simple. The official Star Trek wiki, Memory Alpha, notes that Paramount actually owned Star Trek before CBS did, when Gulf and Western Industries acquired Desilu (the original producer of Star Trek and the studio created by Lucille Ball and her husband Desi Arnaz). CBS enters the picture in 2000 when they were acquired by Viacom, the same company that owned Paramount. Then in 2005, Viacom split into two companies, one that renamed itself the CBS Corporation and the other that retained the Viacom name as well as ownership of Paramount Pictures, the producer of the Star Trek movies. While it's pretty clear that CBS and Paramount, between them, still own the rights to Star Trek, determining which entity holds which copyrights would be significant for determining the distribution of any damages. It would also be significant if a determination was made that Axanar only violates copyright in the television series and not in the motion pictures, because in that case one of the plaintiffs might have to exit the lawsuit for lack of standing.

In the second argument, the Axanar defense claims that they can show that their use of Star Trek material is 'fair use', and thus not infringing on the Star Trek copyrights. As part of their defense, they argue that the only way to demonstrate this is for the defendants to complete their film so that the court can compare that film with other Star Trek material to determine whether the use of Star Trek material amounts to fair use, and claims to prevent the film from being completed amounts to 'prior restraint'. On one hand, this assertion is ludicrous on its face; the right of a copyright holder to determine the manner and creation of derivative works means little if every such potential work must be allowed to be completed before it can be judged infringing, yet the Axanar defenders do have a point -- the preliminary work may not be representative of the final work, and, if the filmmakers are made aware of what specific parts of the Star Trek copyright they are violating, they may (in theory) be able to change the way they put the film together in such a way as to avoid infringing those copyrights. I personally don't see how that can succeed -- the filmmakers are not trying to make a new and different Galaxy*Quest, after all, they've explicitly stated to their fans that they want to make a Star Trek fan movie, and producing a film that those fans will enjoy would all but require exploiting copyrighted material, at least in my opinion.

So I'm not too upset about the likelihood of Axanar never actually being made. It's not as though it was a project that was made to appeal to what I find exciting about Star Trek, and it's not as if it's likely to survive what will almost certainly turn out to be a long, protracted legal battle, during which it is all but certain that no actual progress is going to be made on the film itself. Though in all honesty, I'm not all that excited about the new Star Trek TV series announced by CBS, either, given that the named executive producer co-wrote and produced the only Star Trek movie I've ever walked out of.

Maybe Star Trek: Timelines can satisfy my fix?

Tuesday, October 06, 2015

Jobs vs. Ritchie

There's a Facebook meme going around right now that compares two highly influential men in the history of computing: Steve Jobs and Dennis Ritchie. The meme, however, really tries to make the case that Ritchie was not only more significant in computing history than Jobs was, but also that Jobs would have been easily replaceable while Ritchie's work was irreplaceable.

I have some problems with this analysis.

Dennis Ritchie

I don't want to give the impression in this comparison that Dennis Ritchie was uninfluential -- Ritchie was highly influential in his contributions to the history of computing: he helped create the C programming language and the UNIX operating system. However, a lot of the things listed under Ritchie's name as not existing without his influence would actually have still existed, for two reasons:

1. Ritchie didn't work alone, and

2. Ritchie's work was largely derivative.

Ritchie began working at Bell Labs in 1967. One of the first projects Ritchie contributed to at Bell Labs was a computer operating system called Multix, being developed jointly with Honeywell and the Massachusetts Institute of Technology. However, Bell dropped their collaboration in the project in 1969, allowing Honeywell to complete the project and develop Multix as a commercial product -- one of the first commercial computer operating systems.

After dropping out of the Multix project, Ritchie and one of his co-workers, Ken Thompson, started working on a different project, originally called UNICS, but by 1971 replaced by UNIX. Interestingly enough, the two things most computer folk know about UNIX today were not true when it was created -- UNIX was not a general-purpose operating system (until much of UNIX was re-written from assembly language, it only ran on computers produced by Digital Equipment Corporation), nor was it open-source and free for use (a commercial license was $20,000, and it allowed the purchaser access to the UNIX source code, not any assistance in installing or running the code on an existing computer).

The story of how UNIX became open-source, and tremendously popular in academic circles is itself fascinating, but beyond the scope of this essay -- suffice to say that it had a great deal to do with a consent decree that settled an anti-trust lawsuit against Bell Labs in 1956 that prevented Bell (now AT&T) from patenting anything that didn't count as a common-carrier communications technology, plus Ritchie's co-creator Ken Thompson's willingness to send the source to universities on request. It was the government's break-up of AT&T, freeing the company from their consent decree, that led to Richard Stallman's work on GNU and the official creation of the open-source software movement.

The eventual portability of UNIX to other computer platforms was made possible by another of Ritchie's creations: the C programming language. However, the C programming language was not itself wholly original, being largely a derivative of Ken Thompson's B programming language, itself a simplified version of the BCPL language designed by Martin Richards in the UK. In addition, Ritchie worked with yet another computer engineer, Brian Kernighan, to publish 'The C Programming Language', which became so popular among programmers that the book itself was often simply referred to as 'K&R', and the language it described as 'K&R C'.

Kernighan and Thompson were not the only talented computer engineers working for Bell Labs in the late 60's and 1970s, so it's difficult to imagine that, despite Ritchie's clear contributions to both C and UNIX, that some other engineer (perhaps Douglas McIlroy or Joe Ossanna, who also participated on Bell's UNIX team) wouldn't have made the same contributions Ritchie did. In fact, Ritchie himself was being either highly humble or highly realistic when he frequently gave credit to others working with him for the advances in computing that he was largely credited with.

Lastly, and it's a point that many folks who work with software concede only reluctantly, but eventually concede, is that the C language, while fine for its time, was ultimately riddled with flaws and bugs that made it very frustrating to work with for someone who wasn't an expert at reading the C manual. And though later languages were written to incorporate later advances in computing (such as object-oriented programming), even those languages inherited a lot of C's crappy behavior. In short, had C never become as popular as it did, it's likely a better-structured, less flawed language might have taken its place.

Steve Jobs

According to the Facebook meme, the only two things we'd be missing if Steve Jobs hadn't existed are 'iDevices' and 'over-expensive laptops'. While I can imagine someone being irritated with Jobs' lionization by the media, especially after his return to Apple in the late 1990s, this summary drastically understates Jobs's influence on the personal computing era.

Most people who aren't educated in the history of computers will probably say that the first personal computer was the IBM-PC, introduced by IBM in August of 1981. There's only one problem with this history -- it doesn't explain why, on August 12, 1981, Apple Computer printed an advertisement in the Wall Street Journal that started with the phrase, "Welcome, IBM."

The reason Apple could publish such an ad was that they'd already been successfully selling a personal computer for four years -- the Apple II, first produced in 1977. The Apple II wasn't the only commercial personal computer being sold -- it competed with the Commodore PET and the Tandy TRS-80 -- but the success of these early personal computers (much more so than the hobbyist personal computers of the previous generation, specifically the Altair 8800) pushed other manufacturers into the market, including Atari and IBM.

This would, oddly, end up helping Jobs and Apple. In 1983, Commodore and Atari engaged in a vicious price war, in which Commodore's C64 computer began directly competing with Atari home game consoles, already under some pressure from competitors in the console space. Apple and IBM, positioning their computers less as gaming devices (though games were certainly available) and more as general purpose computing and business devices, escaped the worst of this crash. Then, Jobs's first great innovation hit.

The Apple II was mainly Steve Wozniak's creation -- he'd put together the design of the original Apple I, and the Apple II was largely a refinement of Wozniak's machine. But Jobs had his own idea for what a personal computer would be like, starting with the famous '1984' television ad that both introduced the Macintosh personal computer and cemented the Super Bowl as a major event for the production of big-budget commercials. The Macintosh would go on to invent the field of desktop publishing, with the convergence of the Macintosh, the Apple LaserWriter desktop printer, the PostScript printing and font technology developed by Adobe Systems, and Aldus Software's PageMaker program that tied it all together in a 'what you see is what you get' presentation. Jobs didn't do it himself, and he technically wasn't even first (a programmer named James Davise produced a program for a community newspaper which was briefly sold commercially in 1984), but the combination of these technologies created an entire industry.

And of course, if not for the success of the Apple Macintosh graphical user interface (GUI), Microsoft would not have been 'inspired' to create Microsoft Windows as a replacement for their command-line DOS operating system.

Being a part of the personal computing revolution and helping to invent the desktop publishing industry would be achievements as impressive as Ritchie's in the history of computing. But Jobs takes things a step further after being forced out at Apple and then returning: Job's re-invented Apple moved from inventing new technologies to making existing technologies usable for the general public, and effectively expanding the consumer electronics industry.

Jobs, like Ritchie, didn't achieve his highest successes alone. But many of Jobs's successes don't share the sense of inevitability that surround Ritchie's -- Ritchie was one of many talented engineers working at Bell Labs, but Jobs spearheaded the development of the iMac, the iPod, the iPhone. None of those were the first products in their field; none were pioneers. Every one, though, expanded both the consumer electronics industry, and Apple Inc.'s place within it.

Dennis Ritchie's achievements are celebratory, and should be celebrated in the history of computing. But in no sane universe are Dennis Ritchie's achievements considered superior to the achievements of Steve Jobs.

Tuesday, September 01, 2015

My Only Hugo Disappointment

As most of you know, at last Saturday's Hugo Awards ceremony, the voters, of which there were a record number, chose not to offer awards in six categories rather than to give the award to nominees who got on the ballot because of the Sad/Rabid Puppy slating campaign. In the categories in which awards were given, in nearly all cases the Puppy nominees in the category finished below 'No Award.' The only category where a Puppy nominee prevailed was in Best Dramatic Presentation, in which one of their choices was Guardians of the Galaxy. There's not a lot of credit they can take for that one.

- John Scalzi, "Being a Jerk About the Hugos: Not as Effective a Strategy as You Might Think"

So, in the wake of the Sad/Rabid Puppy nonsense, I was moved to purchase a WorldCon membership and vote in the 2015 Hugo Awards. Some of my votes did well, particularly No Award, though clearly I wasn't alone in those votes. Other votes I didn't do so well in, but still thought the eventual winner was a good selection. There was really only one category where the Hugo voters disappointed me: the Best Dramatic Presentation category.

Technically, the Best Dramatic Presentation category is divided into two different awards: long form (a.k.a.: movies) and short form (a.k.a.: TV shows). The Puppies weren't quite as effective in getting their nominations on the ballot in these categories as they were in others -- only four works were nominated by the Sad Puppies for BDP:Short Form, of which three were nominated, and likewise only four works were nominated by the Sad Puppies for BDP: Long Form, of which two were nominated, though a third nominee (the Game of Thrones episode 'The Mountain and the Viper') came from the Rabid Puppy slate.

For the BDP: Short Form award, which has been won by the BBC TV series Doctor Who so many times that some fans have simply taken to referring to the category as the "Doctor Who Award", the majority of voters seemed to have decided to vote for the show that would most piss off the Puppy voters if it won -- thus, the Orphan Black episode "By Means Which Have Never Yet Been Tried" ended up winning. (The Hugo Awards uses a version of Instant Runoff Voting for its vote tallying, and by the results of the voting, it was clear that Orphan Black had a comfortable lead throughout the voting process.)

I myself voted for the pilot for the Flash TV series, even though it appeared on a Puppy slate. I felt my vote was justified for three reasons:

  1. Just because science fiction is becoming and should become more inclusive and varied in the stories it tells doesn't mean there isn't still room for the traditional 'white guy hero' stories as well.
  2. If you're going to tell a 'white guy hero' story in the DC Universe, pretty much only Superman is a better option than Barry Allen as the Flash (and that story, as 'Smallville', has already been told).
  3. There's actually quite a bit of actual science in the science fiction of the Flash pilot, from the function of the particle accelerator to the specialties of most of the characters in the show, including Allen himself, who is a police forensic scientist.

I don't watch Orphan Black, but based on things I've heard about it from friends, I don't begrudge it the win; it certainly seems deserving.

Less deserving, in my opinion, was the BDP:Long Form win by Guardians of the Galaxy. Interestingly enough, a lot of my criticisms of GotG are available in entertaining YouTube video form thanks to Screen Junkies: Honest Trailers - Guardians of the Galaxy

To start, it's really difficult for me to come up with any actual science in the science fiction being celebrated here. Most of the aliens are human-looking people with different colored skin, but the skin colors don't inform anything about where the aliens are from or what their beliefs or personalities are -- this makes GotG's use of color less science-fictiony than Star Trek's, whose green Orion slave girls were at least a reference to the culture on Orion (even if it turned out to be a false signal) which informed a number of episodes in different series. Here, the color of the aliens isn't used for much other than a cue for the audience to root for the white-looking residents of Xandar as they get attacked by the motley blue and green aliens led by the main and lesser villains of the piece, respectively. The closest GotG ever gets to actual science is a reference, in passing, to the cybernetic surgery that created Rocket, but nothing is done with that, either, except to justify Rocket's alcoholism and psychopathy. GotG is basically science fiction in the same sense that Star Wars is science fiction -- which is to say, it's not really. Both films are more accurately 'space opera'; a genre set in a futuristic setting, but where neither the setting nor the technology and science therein really impacts the plots, which are all epic character arcs, romances, and political dramas.

Next, consider that much better examples of science fiction were on the ballot, not all of which was Puppy-approved. Sure, both Interstellar and The LEGO Movie were Puppy-nominated, but at least the former was much more rooted in science-fiction. More significantly, Edge of Tomorrow, the Tom Cruise time-travel movie, managed to be nominated despite not appearing on either Puppy list. I actually voted for Captain America: The Winter Soldier, which wasn't quite as 'hard' as Interstellar on the Mohs scale of SF, but was at least a more gripping fantasy than GotG.

But the big problem with GotG as Hugo-winner came when I discovered what movie got left off the Hugo nominations list because of the three films from the Puppy slate that got on it: Big Hero 6.

The entire plot of Big Hero 6 revolves around the question of who decides how to make the best use of technology, and for what ends. The 'superpowers' exhibited in the film all make use of science presented in the film, and while not all the science is strictly 'real-world', it still follows the rules set up in the film itself -- for example, the limitations of Hiro Hamada's big invention become a significant plot point in the defeat of the true 'villain' of the piece. And, of course, it was a really good story, well-told. Had Big Hero 6 been in the nominations list, I'd have voted for it myself, and felt it was the most deserving potential winner, but because a bunch of butt-hurt white dudes felt like flooding the Hugo nominations market with their own wishlist, the movie I thought would have been the most deserving 2015 Hugo winner didn't even get nominated.

That, to me, was the biggest and really only disappointment I had from taking part in the 2015 Hugo Award voting. It may well be something I decide to do more regularly in the future, if only to continue to represent a 'new mainstream' in SF where diversity in stories and subjects is celebrated, not lamented.

Sunday, June 28, 2015

Love Won, Because It Was Time

The decision is reminiscent of the "penumbras, formed by emanations" reasoning employed by Justice William Douglas in Griswold v. Connecticut, which eventually made the constitutionally unprincipled ruling in Roe v. Wade possible.

- Ken Connelly, opinion piece published on

Since the Supreme Court's ruling in Obergefell v. Hodges was announced on Friday, June 26, a certain portion of the conservative commentariat has gone earnestly ape-shit over it. Connelly's position should be obvious given his drive-by reference to Roe v. Wade, another conservative jurisprudence shibboleth, and I doubt anyone would be surprised that he contributed friend-of-the-court briefs in both Obergefell and United States v. Windsor, the ruling that served as precedent and struck down the definition of marriage in the federal Defense of Marriage Act as unconstitutional, both on the side seeking to maintain the status quo.

Those points in themselves, though, are not sufficient to dismiss Connelly's point, despite the tone of his argument approaching what a much-younger friend described as 'butt-hurt'. The argument that Connelly makes for "Why [the] Supreme Court got it wrong" (the title of his essay), basically boils down to this passage:

[T]he court in Obergefell v. Hodges ignored history, the text and meaning of the Constitution, and prior Supreme Court jurisprudence to justify its holding that the 14th Amendment mandates the recognition of same-sex marriage.

The problem with Connelly's argument, and the reason it can ultimately be dismissed, is that he doesn't actually back up his thesis with credible evidence, and the little he does provide is easily disproved by examining the decision itself.

For instance, with respect to history, Connelly notes that when the Court struck down Texas's sodomy laws in Lawrence v. Texas, it cited that "national laws and traditions" (to use Connelly's words) were evidence of "an emerging awareness" (to use the Court's words in Lawrence) that private decisions on sexuality were part of the 14th Amendment's protections. Likewise, Connelly points out that in Roper v. Simmons, a decision that found that assigning the death penalty for juvenile offenders was unconstitutional, the Court cited both a "national consensus" and the "overwhelming weight of international opinion" to help justify its decision.

Connelly complains that such consensus is not cited here because it does not exist -- he goes on to claim that only 21 of the 193 members of the United Nations have legalized some form of marriage for same-gender partners, and that only one international court has judicially imposed the practice as being in concert with that nation's own constitution. The problem with this is that Connelly is engaging in a bit of selective framing: of the vast majority of U.N. members that have not yet legalized marriage for same-gender partners, those nations are overwhelmingly 'third-world' nations; of the U.S.'s peer nations, the majority have recognized such a right and have enumerated it. Canada did so ten years ago, as an example, and Ireland recently did so in one of the most popular plebiscites in its history. Even Spain and France, cited by Connelly as nations who've had judicial decisions upholding opposite-gender marriage, have legalized marriage for same-gender couples through legislation: France did so in 2013 while Spain did so in 2005.

Connelly does a similar re-framing tap-dance when he notes that "[o]nly 11 states, acting either through their people directly or through their elected legislators, have chosen to redefine marriage," by pointing out that the many other states where marriage is allowed to same-gender couples were "thwarted -- by state or federal courts -- in their attempt to retain marriage as it has always and everywhere been defined." In every case, the 26 states where courts made a judicial ruling allowing marriage for same-gender couples did so based on the same reasoning used by the Supreme Court -- the state constitutions, containing equal protection clauses equivalent to that of the 14th Amendment, provided for equal treatment of same-gender and opposite-gender couples with respect to marriage. One could just as easily make the rhetorical point that "only 13 states continue to ignore that their state constitutions will not tolerate the different treatment of same-gender and opposite-gender couples with respect to marriage" and be just as grounded in fact. The reality is that, if there is momentum, it is in a direction favorable to marriage for same-sex couples: prior to 2012, bans on marriage for same-gender couples had never been defeated in state-wide elections, until the voters of Minnesota defeated such an amendment in November of that year. Minnesota eventually passed a law explicitly allowing marriage for same-gender couples, but it was not the first state to do that: Delaware and Rhode Island had done so by legislative action earlier in the year, while Maine, Maryland, and Washington state incorporated explicit approval in their state constitutions as part of popular plebiscites the prior November.

The idea that allowing marriage for same-gender couples is some kind of hasty, un-analyzed option was directly addressed in the majority opinion in Obergefell, specifically in Part IV of the opinion. The opinion basically demolishes the argument from both sides: on one, the opinion notes that:

[T]here has been far more deliberation than this argument [in favor of waiting for legislative action and greater public approval] acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life -- state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities -- have devoted substantial attention to the question. This has led to an enhanced understanding of the issue -- an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.

As an example, Appendix A, referenced in the quote above, is more than five full pages of references to court decisions and legislation related to the discussion of marriage rights for same-gender couples, and while many of those references are recent, they also include citations as far back as Baker v. Nelson from 1971. So, no, the discussion regarding marriage for same-gender couples is not in its infancy in any way -- it's been going on for decades and is reaching its maturity as this Court is making its deliberations. But even so:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." ... This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." ... It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.

I bolded the most significant point for emphasis; even though the opinion does demonstrate that the argument had advanced much farther than opponents want to admit, that very argument is irrelevant when the question is one of fundamental rights and relates to the Constitution. Game, set, and match.

We could move on to address Connelly's points regarding previous Court decisions and the Constitution itself, except that Connelly makes no such arguments in his essay: the closest he comes is to cite Lincoln's Gettysburg Address and claim that a Supreme Court decision isn't reflective of a government of "the people".

I'd provide the counterarguments for Connelly's assertion myself, but I don't have to -- Justice Anthony Kennedy has done remarkably well in the majority opinion, so you can read it there if you like.

Instead, I'll make a point that I feel is significant in the evolution of this discussion regarding marriage for same-gender couples, and it relates to my using that specific phrase instead of 'same-sex marriage' in my own essay. The people who were always highly motivated to see marriage between same-gender couples as wrong, I believe, was always a minority and a fairly small one at that. What they lacked in numbers was made up for by the advantage of rhetoric -- they were able to put their objections into a form that people who didn't feel strongly about the issue found persuasive. The phrase 'same-sex marriage' was part of that rhetoric -- it suggested that same-gender couples were looking to twist the classical definition of marriage by trying to sneak in a special right to it. While they had no evidence that 'same-sex marriage' would harm children and lead to the weakening of more traditional marriages, their rhetoric was persuasive to many when the only counter-argument was 'no, that's silly'.

But as time passed, and many of the argued dangers of 'same-sex marriage' were exposed as the pieces of frightening yet empty rhetoric that they were, so, too, did public tolerance of that rhetoric change. People began to realize that there was no 'same-sex' or 'opposite-sex' marriage, just as, for an earlier generation, there was no 'same-race' and 'mixed-race' marriage; there was just marriage, and that denying people the chance to pursue their happiness in marriage to someone they love wasn't really a thing they wanted to do. This was a huge win for the advocates of marriage equality; a time where raising awareness was exactly the needed tonic for the national disease of bad arguments. Today, the tired old arguments that keep getting trotted out by opponents of marriage equality (it'll lead to polygamy! to bestiality! to consanguinity!) are being more and more frequently ignored, not because people stopped agreeing with the argument, but because they finally became aware that they never agreed with the argument in the first place.

Marriage for anyone who feels strongly enough to take on the challenge is an idea whose time has finally come. Congratulations to all of us.

Sunday, April 19, 2015

Much Ado About Spectrum Crunch

After decades of growing access to the Internet, faster speeds and more bandwidth, and all the new technologies that come with that -- a tech boom that has spanned many of our entire lives, we're about to run into a pretty sturdy ceiling on this thing.
- Extra Credits, "Spectrum Crunch" (June 14, 2012)

"Right now, we have a 15-to-20 year backlog of new technologies and architectures ... which can take us a long way into the future."
- David Tennenhouse, VP of Technology Policy at Microsoft, quoted in the MIT Technology Review (November 26, 2012)

Let's start out by saying that I'm a fan of the folks at Extra Credits. They generally do a good job of covering topics of interest to the gaming community, and sometimes come up with absolutely amazing episodes that expand the sum of human knowledge -- their take-down of the game "Call of Juarez: the Cartel" pointed out both how lazily designed the game was as well as highlighting that the game both trivializes and misleads about a major source of tragedy -- the drug war between Mexican cartels and the Mexican government.

With that said, the Extra Credits folks, particularly the guy who does the major share of the writing and comes up with many of the topics, James Portnow, doesn't always get his bat on the ball, so to speak, and has some blind spots that he, to his credit, seems to be trying to work on. One of his biggest blind spots is that James isn't a technologist, he's a game designer, so while the episode on spectrum crunch listed in the opening quote looked well-researched on first viewing, it's quickly clear that a lot of what is being cited is simply releases from other folks commenting on the issue, much of which is done without bothering to analyze whether the information is wholly accurate** or whether the reason the information is being released has some ulterior purpose.

** - Best example: the video notes that, according to the FCC, the 'average iPad' uses 122 times the spectrum of an old-style, pre-smart-phone era cellular phone. I'm not sure how the FCC is defining 'average', though, because a significant portion of iPads, perhaps even a majority, use exactly zero cellular bandwidth, because they don't have a cellular modem (it's hard to tell because Apple doesn't provide a breakdown of iPads sold by type -- they've only released total sales by quarter -- but since the models with the cell modem are more expensive, and since they also need to have their 'wireless plan' turned on for the cell modem to be usable, it's probably a more accurate statement to say that a majority of iPads, even a majority of iPads with cell modems in them, use very little if any cellular bandwidth in any given month). According to Cisco Systems, 'mobile connected tablets' (which includes both iPads and Android tablets) consumed just over 2 gigabytes of mobile data per month in 2014. (With over 100 million iPads sold since the start of 2013 through the middle of 2014, this means that the 'average' iPad is using about 20 kilobytes of cellular bandwidth, defined as mean usage. This is pretty clearly not what the FCC is talking about when they talk about the 'average' iPad.) This total is pretty big compared to total bandwidth used by smartphones (which averaged 819 megabytes of mobile data per month during the same time period), but it's just a bit less than that used by cell-equipped laptops (which consumed 2.6 gigabytes of data per month).

This is how you publish an episode about 'hey, there's this big problem coming that's going to have a major impact on gaming', and less than 6 months later find an article published by MIT that basically says 'yeah, it's something to keep an eye on, but nothing to really worry about'.

So what is 'spectrum crunch'? That's the name given to a potential crisis deriving from a basic scientific understanding: that information broadcast through the air can only be done through certain frequencies (mostly in the radio portion of the electomagnetic spectrum, as infrared and visible light tend to be blocked by most physical objects, and ultraviolet and higher frequencies tend to be dangerous and/or lethal), and the number of usable frequencies is finite, because frequencies can't be infinitely sub-divided.

So how did the Extra Credits folks end up falling for the hype? And how do I know it's mostly hype? Well, consider the following:

'Spectrum Crunch' will always manifest as a local, not a global, problem

The presentation of spectrum crunch as a problem always seems to presume that it's a problem that's going to affect everyone -- everyone in the US, everyone in the world, what-have-you. But radio transmission really only ever takes place over a limited region -- that's why you can have one radio station broadcasting on one frequency in Minneapolis, for example, and another broadcasting on the exact same frequency in Madison, because the reach of those broadcasters is such that the station in Minneapolis isn't going to have any significant impact on the signal from Madison and vice versa (the possible exception being the very small area on a direct line between the broadcast towers and exactly half-way between them).

What this means is that while New York City is already suffering to some degree from spectrum crunch (go read reviews of the various wireless companies as listed online by folks who live and work in Manhattan for an example), folks in, say, Bozeman, Montana aren't going to feel the crunch for quite some time, if ever. This is small comfort to folks who live in New York City, but it's good news for the rest of us, because we can get a feel for just how significant the issue is becoming by watching how it's being handled in places like NYC and Los Angeles -- if enough technological work-arounds and new technology tricks are introduced to defer problems with spectrum crunch in NYC, then Minneapolis isn't going to notice any problems with spectrum crunch over that same time period.

This also suggests that spectrum crunch may have some positive effects -- for instance, a 'mobile office' isn't really useful if you don't have enough spectrum to be able to run your mobile office. But as markets evolve to the point where you don't need to have your office in the same geographic location as your customers, people will be motivated to move away from the spectrum-crowded huge cities out to less populated cities and even into rural areas being served by wireless network services. This distributed spectrum usage then creates more distributed use of other resources as well.

There are technological work-arounds already in place

The MIT Technology Review article cited in the opening quotes starts out by asking the reader to imagine a stadium, filled with sports fans or concert fans, all using their phones to send data to their friends. What do you suppose the impact is on the local wireless spectrum around the stadium?

The surprising answer is 'none'. Strategically placed through the stadium are a number of small boxes that contain wireless receivers connected to routers. Those receivers pretend to be cell phone towers so that phones will connect to them (since they are closer and thus have a stronger signal), but those receivers then route the traffic they receive onto a wired Internet connection out of the stadium and onto the global web. As long as the folks installing the receivers put enough of them in the stadium to cover the maximum possible bandwidth usage by people inside the stadium, the folks there won't even notice (except maybe once in a while if enough people connected to the same receiver try sending/receiving information at the same time).

You can do something similar for your own bandwidth -- for instance, if you live in a large apartment complex, you'll be better off connecting your phone to your own wi-fi network than using the cell network. Not only will you save on cell data charges, but by not sending your traffic over the cell network, you're not contributing to a local spectrum crunch.

This kind of off-loading is becoming increasingly common, by the way -- the same Cisco article linked above notes that 2.2 exabytes of mobile traffic was off-loaded into wired networks each month in 2014, which is over a billion times as much traffic as was generated by tablets.

Future technological advances are already on the way

In what might count as ironic, one of the reasons that cell carriers seem so excited to roll out higher speed networks is that, in doing so, they defer spectrum crunch.

How? Well, consider that most Internet usage doesn't require a continuous connection. Sending e-mail, loading up photos to Snapchat, updating your status on Facebook, those things require a connection to send the information, and then the connection is no longer needed. The faster you're able to complete your task, the sooner your connection is off the network, and the sooner that bandwidth is available for someone else to use.

The one area where I will concede that the Extra Credits folks have a good point to make is that gaming is one of the few online applications that does require a continuous connection -- the example games listed in the YouTube video linked above would require continuous connections, and thus wouldn't be affected by improving speed (if anything, better speed might convince game developers to increase data transfer for the game, since the faster network can ostensibly 'handle it'). So there is a possibility that, if the spectrum crunch does become less and less able to be mitigated with technology work-arounds, local governments might start imposing usage limits on cellular network use that would have a huge impact on gaming. But that just segues into the last point...

The 'spectrum crunch' is as much a political issue as a technological one

The radio spectrum is presumed to be 'owned by the public', which is why the federal government licenses its use. The Federal Communications Commission does this, along with other duties, on behalf of the public. You may have most recently heard of the FCC with respect to the rules they passed in support of so-called 'net neutrality', but that's just a small part of their overall responsibilities.

However, it should be noted that the Commissioner of the FCC, the one who issued the report that made 'spectrum crunch' into a thing, was Julius Genachowski, who had worked mainly as an attorney prior to his appointment to the FCC. He had worked as a Chief of Business Operations for a technology company and also co-founded another, but his background wasn't in technology, it was in law and business. Likewise, the current Chairman of the FCC, Tom Wheeler, was previously head of the National Cable Television Association, head of the Cellular Telecommunications & Internet Association, and CEO of a private investment firm. In fact, it's hard to find anybody with a chairpersonship in the FCC who actually has a technology background -- one commissioner actually lists in his bio that his "focus is on creating a regulatory environment in which competition and innovation will flourish, thus benefitting American consumers. He believes that it is vital for the FCC to adopt policies that will give private firms the strongest incentive to raise and invest capital; to develop new products and services; and to compete in established and new markets."

It is therefore telling that the FCC's published advice on the 'spectrum crunch' issue is largely to make more spectrum available to wireless broadband providers.

It is true that, as noted in the MIT article, the federal government has had a very low-tech approach to licensing the radio spectrum, especially for military use -- it's noted that the government has licensed specific frequencies for military use across the country, even where the military requirements for such use occur only in a few specific areas. Nevertheless, it should be obvious that increased licensing is just as much a stop-gap measure as technological work-arounds are -- eventually you'll run out of extra spectrum to license. The real kicker is that wireless providers have already paid billions of dollars in auctions for parts of the spectrum, and are clearly hoping that having political allies in Washington will allow them to get additional spectrum for much less cost.

In other words, business as usual for major corporations in the US. It might have been nice if some of the comments used in the Extra Credits video had been analyzed to realize just how self-serving they were, in an attempt to make the issue seem much more of a crisis than it really is.

Tuesday, March 31, 2015

indiana's RFRA and GenCon - State of Play

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

- U.S. Constitution, Article Six, Clause 2 (a.k.a.: the Supremacy Clause)

Those of you familiar with this blog will know that I often write about heading to GenCon, the massive gaming convention that's been held in Indianapolis over the past decade. So my ears perked up when I heard that GenCon was one of a number of companies (GenCon LLC is the actual entity that runs and organizes GenCon as a for-profit enterprise) that published an open letter to Indiana governor Mike Pence encouraging him to veto a bill that would, in theory, protect the religious liberty of Indiana residents.

Pence, who is said to have entertained hopes of contending for the 2016 Republican presidential nomination, signed the bill into law anyway.

GenCon CEO Adrian Swartout then published another open letter, this one to the GenCon community, explaining that, while GenCon had been happy with their partnership with the city of Indianapolis, and that they were honoring their contract with the city to continue to hold the convention there through 2020, they were also planning to carefully monitor the environment in the city and that the impact of the new law might well convince GenCon to make different arrangements for the convention in 2021 and beyond.

Since following this evolving situation, I've noted a lot of commentary about it -- the mass media seems to have gravitated to the novelty of a game convention company making a political stand against a state government -- and among that commentary, there is, unsurprisingly, a lot of misinformation and confusion. While I'm not a lawyer, the text of the actual law is fairly free of legalese and isn't terribly long, so I thought I might address some of the more egregious misunderstandings and mischaracterizations. Let's begin.

Why does GenCon have to get involved in politics anyway? Why can't they just focus on running an awesome convention?

Because the law has the ability to seriously impact the experience of GenCon convention-goers in ways that GenCon can't control, at least not under its current contract. To understand why this is, you need to understand what it is the law does.

The law's defenders state that the intent of the law is simply to protect the religious freedoms of the citizens of Indiana. But once you look at the law, it's clear that something much bigger is in play.

The law consists of 11 sections. Section 1 uses a spaghetti-list of legal terms to make clear that any law or other practice of a government is subject to this law. (Note that this section can't make the law apply to federal laws or practices, but it can apply to county, city, or other local Indiana government entities; this will become important later.) It also notes that all such laws are affected regardless of whether or not they were made before this section became law itself.

Section 2 says that only laws that specifically exempt themselves from this law are exempt, and specifies how to word such a law.

Section 3 deals with the Establishment Clause of the First Amendment to the U.S. Constitution -- for those who aren't legal scholars, the Establishment Clause is that clause in the First Amendment that says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This is the law's first big cover-your-ass moment: the writers of this law knew that it could not affect federal law, and that to pretend that it could might well cause the U.S. Supreme Court to eventually rule that the law violates the U.S. Constitution, specifically the Supremacy Clause noted at the beginning of this post. Section 3 is basically a long paragraph saying that nothing in this law should be taken as a challenge to the supremacy of federal law as defined in the Constitution. The law also sneakily uses the word 'granting', burying in the middle of the text a definition that changes the meaning of the last sentence of the section -- "(c)Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter." The sneaky part? The earlier sentence that says, "'Granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions." In other words, giving someone government money or benefits doesn't violate this law, but that doesn't apply to denying someone government money or benefits.

(Aside: it's not clear what part of the law Governor Pence is referring to when he claims that the existing law doesn't allow businesses to discriminate, but it's likely this one, as only one other chapter really comes close. Problem is, this section only applies to the distribution (or denial) of government benefits, which private businesses have no control over. If Governor Pence really thought that a protection against discrimination was in this law, then he was duped by his political allies, which doesn't bode well for his future in higher politics.)

Section 4 simply defines 'demonstrates' as a short-cut for 'meets the burdens of going forward with legal action under this chapter'.

Section 5 is short, but very sweet. It defines 'exercise of religion' as any exercise of religion, even if it is not required by a religious authority and even if it is not central to an established system of religious belief. In other words, if you say "this thing that I am doing is an exercise of my religion," this section has your back, because an opponent cannot claim that since no one in your faith requires you to do it and it is not considered a sacrament, that it therefore isn't a 'true' exercise of religion.

This section is clearly the part that people are jumping on to claim that the law authorizes discrimination against gay, lesbian, bisexual, and transgender (GLBT) people -- few religious authorities command it, and many flavors of faith don't require it, but if you assert that your faith includes a need to not associate with GLBT people, that assertion is covered as an exercise of your religion. The only real question is, what under this law doesn't count as an exercise of religion?

Section 6 defines the governmental entities subject to this law. Unsurprisingly, they are all Indiana-specific, largely defined by a different Indiana law.

Section 7 defines 'person' under this law, and it's a doozy. A 'person', for the purpose of this law, can be any of the following:

  • An individual
  • A church
  • An organization or group organized and operated primarily for religious purposes
  • A business that exercises practices compelled or limited by a system of religious belief held by its owners and/or controllers, and that can be sued

Remember the old Sesame Street game, "one of these things is not like the others?" Try that here.

This is the specific section that critics say enables discrimination against GLBT folks. If you own a company, and you operate that company in such a way that the company itself can be said to practice your religion, then...well, we'll get to that.

Section 8 is the real meat of the law. It says that the governmental entities defined in section 6 cannot burden a person's (as defined in section 7) exercise of religion unless the governmental entity can demonstrate that the burden is necessary for a "compelling governmental interest" and that the burden is the "least restrictive means of furthering that compelling governmental interest".

Now for those of you who don't make a habit of reading Supreme Court decisions in your spare time, you may not realize that these two quoted phrases above have special meaning in U.S. law -- specifically they are two of the three 'prongs' in what is referred to as strict scrutiny, which is the most stringent standard of judicial review used in U.S. courts. Interestingly, the law does not include the third prong of strict scrutiny -- that the law must be "narrowly tailored" to achieve its interest. This is an interesting and likely deliberate omission, because it allows the writers of this law to pass other laws which may have wider influences than the actual written text, without those writers needing to worry that a court will find their law overbroad in scope and thus unable to satisfy this section. In other words, it's what tech people refer to as a 'backdoor' -- it allows lawmakers familiar with this law to write other laws that won't be affected by this one, despite not explicitly exempting those laws from this one. They get to have their cake and eat it too. Of all the commentary I've seen on this law, none has addressed this specific point, and if this law is eventually challenged in the U.S. Supreme Court, it is the lack of narrowly tailored analysis that will likely cause the law to be struck down.

Section 9 gives the actual effect of the law. If a person's exercise of religion is violated under this law, that person may invoke the law as a defense against the government action that would restrict that person's exercise of religion. So, for example, if a baker in Indianapolis refuses to bake a cake for a gay marriage and is sued under the city's anti-discrimination laws, the baker can, if he asserts that not associating with gay people is part of his religious beliefs, use this law as a defense against the lawsuit. The city of Indianapolis must then, as part of the suit, successfully argue that their anti-discrimination law meets two of the three prongs of strict scrutiny for the lawsuit to continue to go forward. It also contains a very weird clause that is both necessary for the law to function and makes the law a very powerful tool for those who prefer a specific kind of religious protection -- it says that if a governmental entity is not a party to a proceeding where a law is being challenged by this law, then the government has an unconditional right to intervene in the proceeding to respond to the challenge. In other words, in the baker scenario above, the government would be able to (and must, for the suit to go forward) step into the case and argue that its law passes strict scrutiny**.

** - to all law students out there, yes, the law doesn't actually require the third prong, and so isn't technically 'strict scrutiny'. I'm using a short-cut and am not a lawyer anyway.

(This is the other part of the law that could arguably be what Governor Pence is talking about when he says the law doesn't authorize discrimination, since Pence is himself an attorney. The argument is that any anti-discrimination law that cannot already meet strict scrutiny isn't enforceable anyway, and if the law can meet strict scrutiny, then this law won't stop it from being enforced. The problem with this argument is that it's exactly backward -- if a government action or law is seeking to restrict a fundamental liberty, it must pass strict scrutiny, but if it exists to preserve a fundamental liberty, then it only needs to pass what's called a rational basis test. Equal protection claims are explicitly decided on a rational basis test, which this law would require to be judged on a much harsher basis. So again, either Governor Pence is lying, or he's not very intelligent, because the difference between rational basis and strict scrutiny review is something that's, at least in theory, taught in every undergraduate law college in the U.S.)

The kicker is that the government is given the right to intervene, but not the obligation to do so, and if the government chooses not to intervene, then the suit fails because the defendant's invocation of this law as a defense cannot be overcome. This allows the government to pick-and-choose which kinds of religious freedom they wish to allow. In the baker scenario above, the city of Indianapolis might well choose to intervene, since it's their law that's being challenged, but under a new mayor and/or city attorney, they might well choose not to, allowing the suit to fail. Meanwhile, a different suit involving a Muslim refusing to serve a Christian might well get the state to intervene on the Christian's behalf.

Section 10 is the insult added to injury -- it explicitly states what I alluded to above, that if the state fails to meet its burden of strict scrutiny, the defense provided by this law applies to "all parties" (which means the lawsuit fails). Not only that, but the chapter also explicitly allows the court to provide 'relief' to the defendant, both in the form of specifically allowing the defendant to perform his religiously-motivated activity, as well as possibly even getting 'compensatory damages' (i.e.: money) from the government.

At first glance, Section 11 seems to be a bolted-on extra that doesn't make a lot of sense compared with the rest of the law, but there is method to the madness. Yes, it's another cover-your-ass moment, and the most telling one in the whole law. You see, Section 11 states that this law is not intended to and should not be interpreted to create any claim in law against a private employer.

Why? Because while the U.S. Congress hasn't passed any law making GLBT people a 'protected class' for purposes of Fifth and Fourteenth Amendment protections under the law, it has passed laws specifically forbidding discrimination in employment based on sexual and gender identity. If someone tried to use this law as a defense against refusing to hire or firing an employee because he was gay, this law would fail and be struck down. To avoid this, the writers of the law included this exception -- since if the law can't be used in a legal proceeding regarding employment, then the constitutionality of the law can't be considered in that legal proceeding. Neat, huh?

That's it. That's the law and what it does.

I still don't get it. As long as GenCon doesn't discriminate, why should they care about this law?

Because while GenCon can mandate the behavior of their vendors and volunteers through contracts, GenCon cannot guarantee that other businesses do so. A lesbian couple who is refused a hotel reservation, a gay couple refused service in a restaurant, a transgender person kicked out of a mall store for using the 'wrong' restroom, all of these people will have negative experiences which they will associate with the convention, since the convention is the reason they are there in Indianapolis in the first place. And while GenCon has a contract with the city, it's very unlikely that the contract includes a specific point requiring the city to ensure that convention-goers are treated equally and fairly -- why would such a point be needed, when Indianapolis has laws requiring it? Except that now, under state law, local Indianapolis businesses can ignore Indianapolis law as long as they can make a religious freedom claim under the new law. The more GLBT people who are aware of the possibility of being legally discriminated against, the more likely they are to stay away.

That's the nightmare scenario, and one GenCon is working very hard to avoid -- GLBT people may not be a huge percentage of potential attendees (though given the relative youth of GenCon attendees compared to the general population as well as that gaming itself long was considered an 'alternative' lifestyle, it's likely the percentage of GLBT gamers is larger than that in the general population), but a larger percentage of people know an GLBT person and may choose not to attend in support of their friends and relatives. GLBT celebrities may refuse to serve as Guests of Honor -- George Takei, a high-profile celebrity gay-rights activist, has already announced that he will not attend events in Indiana.

Over the past few years, GenCon has seen amazing growth in its convention attendance, and fears over discrimination might well stop that growth and even begin a downward trend, one which might well turn into a death spiral if not managed well.

So what? A private business owner should have the right to not serve anybody he doesn't like.

Addressing this one is outside the scope of this essay, but I'll just point out two things:

  1. A private business owner is already prevented from discriminating against actual or potential employees through protections in federal employment law. As noted in the discussion of Section 11 above, the writers of this law are aware of this and specifically included language to ensure that this law is not challenged on those grounds by making the law inapplicable to employment issues.
  2. Many businesses are operated as 'public accommodations'; if a private entity makes itself accessible to the public, it must abide by laws that deal with public accommodations, including the Civil Rights Act and Americans with Disabilities Act. Reading up on the concept of 'public accommodations' might well enlighten you a bit on what is required of an ostensibly 'private' organization.

Wednesday, May 28, 2014

Screwtape Writes a Letter

My dear Leadscrape,

Allow me to join the many shades and gentledevils who are no doubt showering you with accolades over your recent success in America. Such a success shows tempting skill of the first order, and suggests a future bright with further opportunities for mayhem and delight. I would not have considered writing you, except that a casual review of graduation records showed that you were in attendance with the graduating class of the Tempters' Training College on the night I gave the commencement address. While I do not recall that we spoke on that occasion, the connection seemed significant enough to excuse my boldness in addressing you in the hour of your triumph.

I also, as the undersecretary of a department, took the liberty of requesting your reports, as well as a copy of the transcript of the post-mortem interview with your supervisor following the processing of your patient. (As an aside, let me say that your supervisor's jealousy of your success was quite obvious from the text of the transcript, and that no intelligent devil will hold that against you.) It was one point in particular -- your question as to whether or not your success might lead to greater difficulties for other tempters in the future -- that convinced me to communicate with you on that subject.

Let me begin by saying that your concern does you great credit. If more devils were as interested in the greater expansion of Hell's dominion on Earth rather than in simply adding souls to their personal larder, our progress against the Enemy would certainly be significantly improved. But I think your concerns are somewhat exaggerated, and while some second-rate tempters may find their patients are a bit more wary of their tactics over the next few months or years, on the whole I believe the situation is unlikely to change in any significant way.

Let us begin with the most basic observation -- the manner of the triumph. While I am not myself an expert on the American sector, the data collected by our investigative arm speaks for itself: violent killing sprees enabled by firearms are endemic to America -- over half of all such events in the entire world over the past 50 years have occurred there -- and so it was very appropriate for you to take advantage of the environment to push another patient into such an outburst. Indeed, the now traditional calls for 'improved mental health treatment' were seen in the media almost immediately following the event, despite the patient having successfully passed the required background check for acquiring firearms in his state. Indeed, it is difficult to imagine how 'improved mental health treatment' would have impacted this specific patient, given that he managed to convince police specifically sent to evaluate him well prior to the event that he was no threat (I imagine you have some uncredited praise coming for that as well), and that the evidence suggesting mental illness was not seen by officers prior to the fatal events themselves. In that sense, you were wise to take advantage of the opportunity that the culture in America allows, and there appears to be no sign that other tempters will be unable to do likewise, if they know what they are about -- I know it would have been far more difficult for a tempter in my region to have succeeded in the same spectacular manner.

Next, the question of misogyny, exacerbated by the patient's apparent presumption that, as a middle-class male of the seemingly dominant culture, he was allegedly 'owed' companionship and sex from whatever woman he found attractive. This is truly first-rate work, building on the labor of many who came before, and there is no reason to believe that this culture, too, will not endure. Though some have identified a sort of 'entitlement' culture in relatively recent stories, the reality is that our cultural arm has been working along these lines for millennia, nearly as long as the human vermin have been telling each other stories. One of their ancient comedians wrote a play in which a human convinces avians to intercept prayers and sacrifices meant for the gods; the audacious human ends up with both a scepter of royal command and a god's former lover as his bride. Perhaps the most famous story from that era involved the knowledge that, instead of the most beautiful woman in the world being allowed to choose her own mate, the men of the era would go to war to decide her fate. While it is true that some recent stories have done better at avoiding these 'sexist' tropes, the truth is that humans, especially those in our sectors of the world, have such a hunger for stories that there will be no shortage of stories recycling these ancient, useful tropes. Even one of the most carefully constructed popular stories of recent vintage, where the protagonist and his distaff companion build a platonic relationship on mutual caring and trust, contains a harried sub-plot where two characters meet and discover 'true love' after communicating for less than a day, and after the male has rescued the female from drowning. There will be no shortage of future tales for future tempters to use to twist male vanity to entertaining ends.

The one part of your argument that seems worth preparing for is that there does indeed seem to be a tremendous outpouring of support for the idea that males have a responsibility to 'stand up' and help correct sexism and misogyny, at least as expressed in male behavior toward females. This does appear very dangerous to our cause; if human society, even one human society, ever succeeded at providing an example of how racist and sexist beliefs could be handled without conflict, it would put centuries of our labour at risk. Fortunately, this appears to merely be a particularly loud echo of an idea which, while persistent, does not seem to be taking root. Similar echoes occurred with the harassment of a woman in 2007 involving prominent Internet personalities, and even a massacre of female science students specifically because they were science students in 1989. There are literally dozens of different ways in which the male human animals violate and oppress their women, some of them so ancient that uprooting them will take far more than just a handful of impassioned pleas on the Internet.

As for you, my good devil, your obvious talent and intelligence would be significant advantages in my own region's ongoing campaign to promote the United Kingdom Independence Party. Would you be interested in stopping by the offices to see if a supervisory role would suit?

With respect and admiration,