Sweden and Finland still enforcing mandatory sterilization

There's been a campaign going on in Sweden for a good while to change a law that requires people undergoing a sex change to be sterilized (read more here). Unfortunately, the Swedish Christian Democrat party is stopping the reform from happening. Meanwhile, in Finland, we have an identical law, but no-one cares, so there isn't even a campaign against it.

There was a pretty good text on the whole thing here, and I blogged about the Finnish legislation earlier (in Finnish) here.

The madness of the copyright industry

Earlier this week, Dutch anti-piracy organization BREIN won a lawsuit against Usenet provider news-service.com, forcing them to shut down their Usenet service.

TorrentFreak: Major Usenet Provider Shuts Down Following Court Order

News-Service.com, one of the leading Usenet providers with many prominent resellers, has terminated its services with immediate effect. The shutdown is the direct and unavoidable outcome of a two-year battle with Dutch anti-piracy outfit BREIN, which was eventually decided against the Usenet provider. News-Service announced that it will appeal the decision “out of principle” as it threatens the entire 30-year-old Usenet community.

However, it's the reasoning behind this decision that should alarm everyone:

The verdict of the Amsterdam Court is very similar to the one that decimated BitTorrent site Mininova two years ago. It requires NSE to finding a way to identify and delete all copyrighted files from its servers, which is practically impossible.

Aside from threatening many other Usenet providers, a similar judgement would also mean the end of file-hosting sites such as Megaupload, and other cloud storage services including Dropbox. All these services remove copyrighted files when they are asked to, but policing their own servers proactively may prove to be impossible.

BREIN is nevertheless delighted with the verdict of the court. “It is a breakthrough step to further dismantle the availability of illegal content on Usenet,” director Tim Kuik said previously.

It wouldn’t be a surprise if BREIN now waves this verdict in the face of other Usenet providers, in the hope of shutting them down. Using this same tactic BREIN has already managed to pull hundreds of (small) torrent sites offline in the Netherlands.

So, if service providers like news-service.com can't ensure that all illegal content on their servers will be deleted, they have to shut down. This is simply insane. Try applying this logic to other service providers. Can, for instance, a motel "find a way to identify and prevent all illegal activity" on its premises? Can an airline guarantee none of the people or things it moves will be used in the commission of some crime, or indeed that no-one on board is a drug mule, or carrying a pirated CD? If not, should they be shut down? By this logic, yes.

More decisions like this will simply mean that more and more Internet traffic is going to be conducted through darknets and other practically invisible connections that are impossible to police or monitor. In short, they're driving the Internet underground. At best, all this kind of bludgeoning legislation will accomplish is driving legitimate service providers out of business and replacing them with a black market. That isn't in anyone's interest. At the same time, our freedom to use the Internet to interact with other people and express ourselves is being severely curtailed, all in the name of the supposedly lost sales of a few giant multi-national corporations.

These cases very nicely define whose interests the justice system is looking out for.

Finland's idiotic Pirate Bay ban

Just this week, the Helsinki district court has ordered Finnish ISP Elisa to block access to the Pirate Bay. Torrentfreak has the story in English.

As Ville Oksanen points out in his blog, the court decision goes to some lengths to justify the ban, even though they're aware that it won't work. They expect the ISP to block access to a website, without specifying either the domain names or IP numbers to block, or specifying the means to use. Indeed, the presiding judge admits that the block will be ineffective, but astonishingly, insists on it anyway.

Perhaps the best outcome is that the Finnish copyright lobby managed to elicit this public statement from one of the country's biggest telecom companies (via TF):

In a response to the ruling Elisa immediately announced that it will appeal the District Court’s decision. The ISP claims that among other things, the ruling is very unclear as it doesn’t state the specific domain names or IP-addresses that should be censored.

Elisa further says that the decision is practically irrelevant in the broader fight against online copyright infringement.

“The industry should focus on measures that can truly reduce piracy in practice, such as making content available online at a reasonable price and without artificial delays,” Elisa’s Henri Korpi said.

In other words, as Valve recently put it, "piracy is a service issue". That's pretty much what, for instance, various Pirate parties have been saying all along, but it's good to hear it from a big ISP.

This is just the latest chapter in an ongoing saga of Finnish Internet censorship. Previously, a "child pornography" blacklist was set up, and then used to go after a Finnish activist who criticized the police. The police defended themselves by saying that "collateral damage happens". We went to a demonstration on his behalf.

It was later found that blocking access to activist Matti Nikki's website was, in fact, illegal, but this being Finland, the police officers in charge of violating the law to infringe on Nikki's rights to free speech were let off, and he had to pay his own court costs because, really, it wasn't the police's fault that they flagrantly and intentionally broke the law.

The whole child pornography blocking scheme, with its secret blacklists of websites and whatnot, has since been abandoned, but the next step in implementing Internet censorship is being taken by the copyright lobby. In all this, the one thing that's remained abundantly clear is that no-one in the political or judicial process represents the interests of us, the citizens of this miserable country. Legislation, court decisions and everything else is dictated by the interests of the police and the copyright industry. This isn't how a democracy is supposed to work.

Mojang vs. Zenimax: the court papers

We've been posting about Minecraft for a while now on this blog, but we haven't really talked about Mojang's ongoing lawsuit with Zenimax Media, owner of game studios like id and Bethesda. Frankly, we think the whole thing is stupid, and have been hoping that Zenimax would come to their senses. If you don't know what's going on, in very brief summary, Mojang are releasing a game called "Scrolls", and Zenimax are suing them over it, claiming it violates the copyright on the "Elder Scrolls" series.

Yesterday, Kotaku ran an article on the lawsuit that took a new slant on things by painting Mojang as the villain of the piece. Titled Mojang v. Bethesda, or: I Hate it When Mommy and Daddy Fight, in it author Russ Pitts makes the case that Zenimax are merely defending themselves against a nefarious bid by Mojang to "patent" [sic] the word "Scrolls" and thereby, in fact, sue Zenimax.

If one were to attempt to judge based solely on Twitter and the blogs, Zenimax would appear to be the bad guy here. Notch, perhaps attempting to bolster that perception, has put on his hurt face, claiming Zeni is "picking on the little guy." But after looking at Mojang's "Scrolls" patent application, I'm not so sure the case is as black and white as many would seem to believe.

(...)

In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in videogames. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever. Now, that would only be a problem if you were a successful media company planning to use the word "scrolls" in some form of entrainment media … Oh wait … that's right. If you're Zenimax, this trademark fucks you. Hard.

The Kotaku piece has generated some acrimonious commenting and twittering, including several people attacking Notch and calling him a liar. Now we're going to participate in the discussion! To be specific, three things annoy us about that article:

1) the cavalier approach it takes to intellectual property law

2) its misrepresentation of events

3) the fact that Kotaku freely admit they can't read the legal documents, but write about them anyway

For the last point, simply see Kotaku's article Notch Vs. Bethesda: The Court Papers, where they link to said papers, but admit they don't know what they say.

While Kotaku has the documents in question, no one here speaks Swedish.

That, of course, doesn't stop them from running an article where they make Mojang out to be the bad guys.

On this blog, however, we can read Swedish, so we've had a look at the court documents. You can find them here. They tell a story that's quite different from the one invented by Mr Pitts.

A disclaimer: we're not lawyers. We're just reading what we've been shown. This blog post simply consists of our personal opinions on the case and on Mr Pitts's article about it. As we've understood things, the legal documents published by Mojang are in the public domain.

**

Mr Pitts's allegation is that Zenimax are suing Mojang over Scrolls to prevent Mojang from, in turn, suing Bethesda over The Elder Scrolls. He puts forward the notion that Mojang's ""Scrolls" patent application" [sic] is so broad that if Zenimax doesn't sue to stop them, they will be in a position to stop Zenimax from releasing Elder Scrolls games.

If the trademark is valid, Mojang would be able to claim infringement and potentially take Zenimax to court. They might not win, considering Zeni's ownership of the trademark preceded Mojang's, but Mojang could force Zenimax to settle or face an injunction which would keep all of those millions of copies of Skyrim off of store shelves and out of the hands of gamers, depriving Zeni of many, many millions of dollars in revenue.

He goes on:

Seem unlikely? Think again. Companies do this all the time.

Using the power of hypertext, Pitts links to four examples of "companies doing this all the time" from that sentence. Let's look at them.

#1: Trench vs. Trenched

MCV: Trenched blocked by board game trademark

Upcoming XBLA title Trenched has been blocked from release due to a trademark dispute with a board game.

Eurogamer reports that the game clashes with trademarks held by an abstract Portuguese board game Trench. The trademark was filed by Trench's designer Rui Alípio Monteiro in 2007 and covers both board games and computer games.

Like Double Fine's Trenched, the board game is based on military strategy and is set during World War I.

The video game Trenched was eventually released as Iron Brigade. This doesn't seem to me to be a case of a company maliciously suing another to cause millions of dollars of damage; instead, the Portuguese board game's designer had a pre-existing trademark on a World War I game of practically the same name, which he was planning to expand into a video game. It seems reasonable that his claim would be upheld.

#2: Apple vs. Amazon

CNN Money: Amazon wins skirmish in 'App Store' battle with Apple

NEW YORK (CNNMoney) -- Apple has been dealt a blow in its "App Store" trademark case, with a federal judge denying its request for an injunction to stop Amazon from using the term.

Apple filed a lawsuit against Amazon in March, saying that it has used the term "App Store" since 2008 and applied for a trademark at that time. Apple argued that Amazon's "Appstore," an Android marketplace that launched in March, infringes on the trademark and is confusing to customers.

Amazon fired back, saying the mark is generic and therefore not protectable -- and even if it weren't generic, Apple "cannot demonstrate any likelihood of confusion."

Judge Phyllis Hamilton mostly sided with Amazon in her ruling on Wednesday in California district court, in which she denied Apple the injunction it sought.

Hamilton wrote that she "does not agree with Amazon that the mark is purely generic," but also said that "there appears to be no need for a leap of imagination to understand what the term means."

Apple failed to prove its main points, she said, including: that Amazon's "Appstore" name will confuse customers, that it infringes on Apple and that it dilutes Apple's brand.

Here we have Apple being the evil corporation that we consider them to be, effectively trying to make the word "app" an Apple trademark instead of a generic term. Again, I'm not sure how Amazon and Apple fighting over a word are anything like Zenimax and Mojang. Note, if you like, that even though the court didn't agree that the term is generic, they still denied the injunction.

#3: Tim Langdell vs EA

Techdirt: Court Denies Injunction Against EA Over Tim Langdell's 'Edge' Trademark; Slams Langdell

We've covered a few different stories about a guy named Tim Langdell who held a trademark on the term "edge" in video games, which he had used many years ago, and still sorta kinda maybe uses as part of his operation, "Edge Games." And yet, he seemed to think that trademark law means he owns the word, as it relates to video games, forever. So he's been threatening iPhone developers and sued EA, claiming the company's Mirrors Edge series violates his trademarks. EA has fought back strongly against the claims, and Brian alerts us to the news that a court has denied Langdell's injunction request and slammed Langdell in the process, suggesting underhanded practices which could result in criminal penalties.

(...)

When a judge calls you a troll and threatens you with criminal penalties in a lawsuit you initiated... you've got problems. Reading through the actual ruling is incredible, in what it describes about what Langdell has done.

The article describes Dr Langdell's doctoring of evidence, including sending the court photoshopped images (!), which in our opinion is more like fraud than a legitimate copyright case. Essentially, Dr Langdell claimed that his trademark on the name "Edge" stops EA from releasing Mirror's Edge, because it contains the word "edge". His suit was thrown out of court.

Dr Langdell is especially relevant to the case at hand, because Mr Pitts refers back to him later. But we'll get to that.

#4: Activision vs EA

Joystiq.com: Activision 'Rocktober' trademark conflicts with EA's Brutal Legend marketing

When Activision sent out a press release this morning regarding a Guitar Hero DLC discount, we couldn't help but notice a tiny trademark symbol dangling precariously above the term "Rocktober™." That got our mind grapes juicing: Isn't that the term EA has been using to market Brütal Legend's upcoming [strikethrough: October] Rocktober 13 release? It is!

Lo and behold, we turned up an Activision trademark filing for "Rocktober" dating all the way back to 2007. An EA representative was unable to comment at the time of this posting, but assured us we'll have an official statement from the publisher soon. We've also reached out to Activision for its side of the story. In the meantime, we've dropped the text from Activision's press release -- or as it's no doubt being dubbed by lawyers, Exhibit A -- after the break.
Activision press release:

The article doesn't actually mention either company suing the other, i.e. "companies doing this all the time"; what it says is that a third party noticed both EA and Activision were promoting their games using the word "Rocktober", which Activision had apparently filed a trademark on. This doesn't seem to have anything to do with the Zenimax-Mojang case.

**

Having provided these links, Mr Pitts goes on to directly compare Mojang to Dr Langdell:

Besides, if Mojang were as naive and innocent as Notch claims, why the far-reaching trademark application? If one were being generous, one could assume that Mojang is simply attempting to cover all potential bases, which, for a game as potentially all over the map as Scrolls could make sense. But if we're drawing comparisons to the case of Tim "Edge" Langdell (and I am), it pays to remember that Langdell was the one who applied for broad and far-reaching trademarks on the use of a single word, who attempted to sue EA over Mirror's Edge and Future Publishing over Edge Magazine and many, many other companies large and small, and who, ultimately, was pilloried for obfuscation and fraud.

While the comparison may seem attractive on the surface, it's rather more complicated than that. Dr Langdell seems to have effectively run a phantom game company, given that he had to photoshop and otherwise concoct evidence that he was actually doing any real business. As the court ruling puts it:

...given the suspect nature of Dr. Langdell’s representations to both the USPTO and the Court concerning plaintiff’s current and future sales and business activities, it is an open question whether plaintiff’s business activities legitimately extend beyond trolling various gaming-related industries for licensing opportunities.

The court effectively found Dr Langdell to be a copyright troll who maintains a fake game company solely in order to sue real game developers. So drawing a direct analogy to Mojang is a substantial accusation that we feel shouldn't be made lightly, or in fact at all.

**

So Mr Pitts's scenario is that Mojang are copyright trolling by launching a game called "Scrolls" and trying to trademark the name, planning to later sue Zenimax for infringing it with the Elder Scrolls series.

That's nonsense. Not because of any knowledge or assumptions I have about Mojang, as Mr Pitts puts it:

This begs the question of whether or not Mojang would ever do such a thing. "Surely the cute and fluffy, fan-friendly designers of the cult-hit Minecraft would never play such a down-and-dirty trick," you might say, and I, for one, would love to believe that to be true. But if you're Zenimax, and you're sitting on a multi-million dollar videogame franchise with the word "scrolls" in its title, you can't take that chance.

It's nonsense for a simple reason:

Mr Pitts doesn't seem to understand what a trademark is. Indeed, throughout the article he seems to confuse trademarks with patents. Trademarking a name doesn't give the trademark holder sole authority to decide who gets to use that name for any purpose. Mr Pitts claims:

In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in videogames. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever.

This is absolute rubbish. It is, however, delightfully taken to its logical conclusion in one of the comments to Mr Pitts's article:

They would own the trademark to anything with "Scrolls" in it. Not just use of the word "Scrolls" on its own.

Including libraries of historical documents.

Yes. Because that's exactly how trademarks work.

A trademark protects against products that might be confused for the trademarked product. For example, in one of the cases Mr Pitts quoted, a Portuguese game company successfully filed suit for trademark infringment against another company. The case was upheld because the WWI computer game "Trenched" was so similar to the WWI board game "Trench" that they might be confused for each other; someone buying the computer game might think it was based on or affiliated with the board game. That seems perfectly reasonable. It doesn't mean that no-one can ever use the word "trench" in the name of a game, let alone that the Portuguese company suddenly "owns" all World War I books or trench coats. Using Mr Pitts's logic, however, the Trench trademark would mean that no-one can ever include the word "trench" in the title of a video game. Trademark law simply doesn't work like that.

Mojang's trademark for Scrolls doesn't mean they've somehow "patented" the word "Scrolls", as Mr Pitts implied. It also doesn't mean they "could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever". It doesn't even mean that they can sue anyone who has the word "scrolls" in the title of their game. No: it means that if someone else releases a game called Scrolls or something very similar, that consumers will mistake for Mojang's Scrolls, then Mojang can take action.

Under US law, in a case of trademark infringment the plaintiff has to prove the infringing trademark is the same as, or similar to, their trademark. The court determines whether the trademark has been infringed upon by using the "Sleekcraft factors", so named after a Supreme Court case that set them out. Those factors are:

1. Strength of the mark
2. Proximity of the goods
3. Similarity of the marks
4. Evidence of actual confusion
5. Marketing channels used
6. Type of goods and the degree of care likely to be exercised by the purchaser
7. Defendant's intent in selecting the mark
8. Likelihood of expansion of the product lines

In other words, in a trademark infringment case, the party bringing the case has to prove that they have a valid, pre-existing trademark, and the product they claim is infringing on their copyright is sufficiently similar that consumers can be misled into thinking they are buying one when in fact they are buying another.

Mr Pitts's scenario of Mojang suing Zenimax over, say, Skyrim, is patently ridiculous and would be thrown out of court in any jurisdiction. Zenimax have been publishing "Elder Scrolls" games for 17 years and, indeed, own the trademark to "The Elder Scrolls". To obtain an injunction, Mojang would have to demonstrate that their trademark to "Scrolls" (from 2011) is stronger than Zenimax's far older, better-established, multi-million-selling "Elder Scrolls" trademark, and that Zenimax are intentionally selling and marketing Skyrim in such a way as to confuse consumers into buying it, thinking that they were buying Scrolls. The very idea is laughable. We don't, for one minute, believe that Zenimax's lawyers really feel that a trademark on "Scrolls" would threaten their upcoming release of Skyrim.

Such a hypothetical lawsuit would be dismissed as pure trademark trolling, exactly like Dr Langdell's suit against EA was. Given that Mr Pitts diretly refers to Dr Langdell's lawsuits and the Trench-Trenched lawsuit, it's puzzling that he doesn't seem to understand how trademark law works. Mojang could not "rightly take action against anyone else using the word "scrolls" in any form of media whatsoever", because they don't have, and couldn't get, a trademark on the word "scrolls" in "any media whatsoever".

Mr Pitts makes much of the fact that Mojang's trademark application includes things like TV shows and clothing, again failing to understand that this trademark would only cover TV shows, movies, clothing and whatnot directly related to the game "Scrolls". It doesn't cover any movie or clothing line that uses the word "scrolls" in any context, just ones that could reasonably be thought to be related to the game. Just yesterday someone tweeted to Notch, saying Mojang's trademark of Scrolls "would even be hurting book writers". Again, this would only be true of books that could be reasonably thought to be connected with the game Scrolls, not any book with the word "scrolls" in it.

In coming up with a scenario like this, predicated on the false assumption that "Mojang owns the rights to the word "scrolls"", Mr Pitts is simply demonstrating his ignorance of trademark law. His notion that succesfully trademarking "Scrolls" would jeopardize Zenimax's Elder Scrolls franchise is nonsense. Notch has also since stated that Mojang offered to drop its trademark of Scrolls in exchange for Zenimax dropping the lawsuit, but this was rejected. That would seem to be the final nail in the coffin of Mr Pitts's theory

**

While we're puzzled as to why someone would write a lengthy attack on a game company engaged in a trademark lawsuit without even seeming to know what a trademark is, we're even more confused that the same author would posit motivations for Zenimax in filing the suit without having even read the papers they filed. As we mentioned earlier, they are available online, and make for interesting reading.

Zenimax's case against Mojang is based on the allegation that Mojang are deliberately releasing a game called "Scrolls" to fool customers into confusing it with Skyrim. Yes, you read that right. Far from claiming that Mojang intend to trademark troll them, as Mr Pitts maintains, they are postulating a conspiracy by Mojang to confuse customers.

Zenimax are claiming that Mojang are using the name "SCROLLS" to market "identical or similar" goods to those covered by Zenimax's trademark for "THE ELDER SCROLLS". Both terms are capitalized throughout. They assert (sections 3.1-3.5) that they own the trademark to "THE ELDER SCROLLS", have been releasing Elder Scrolls games for 17 years and sold millions of copies. That's fair enough, but then things start to get interesting.

They maintain that Mojang are using the "confusable" title "Scrolls" to market their video game to be published in 2011 (3.7), despite knowing about Zenimax's plans to publish an Elder Scrolls game in 2011. They quote an interview with Notch, where he says he's played Oblivion, to prove that Mojang know about the Elder Scrolls series (3.8).

In section 3.9, the conspiracy theory begins. We'll quote:

Vidare är klarlagt att Mojang är metvetna om den kommande lanseringen av THE ELDER SCROLLS V: Skyrin och att Mojang har för avsikt att dra fördel av kännedomen om spelserien THE ELDER SCROLLS. Efter att ZeniMax tillkännagav att THE ELDER SCROLLS V: Skyrim skulle lanseras den 11 november 2011 tillkännagav Mojang att de skall lansera den slutliga versionen av sitt första spel MINECRAFT på samma datum. Vid tillkännagivandet uppgav Markus Persson att datumet sammanfaller med lanseringen av ett par andra spel och filmer, däribland Skyrim, och att den inofficiella motiveringen var "us too" (Sv "vi också"), bilaga 9. Mojang har därefter antytt att spelet inte kommer att lanseras på detta datum. En samtidigt lansering av MINECRAFT och THE ELDER SCROLLS V: Skyrim utgör visserligen inte direkt intrång i ZeniMax varumärkesrättigheter. Det är emellertid uppenbart att Mojang därigenom avser att i konsumenternas ögon koppla samman lansering av MINECRAFT med lanseringen av THE ELDER SCROLLS V: Skyrim och därmed dra fördel av den internationella kännedom som upparbetats kring spelserien THE ELDER SCROLLS.

Our boldface. Translated, the last two sentences read approximately:

A simultaneous release of MINECRAFT and THE ELDER SCROLLS V: Skyrim does not really violate Zenimax's trademark rights. It is, however, obvious that Mojang intend thereby to join in the consumers' eyes the release of MINECRAFT with the release of THE ELDER SCROLLS V: Skyrim and thereby take advantage of the international fame of the game series THE ELDER SCROLLS.

That's... ridiculous. They're really saying that Mojang picked 11.11.11 as the release date for Minecraft in order to leech on Zenimax's PR, as opposed to picking it because, well, it's 11.11.11.

As a note of legal interest, they run through the criteria for trademark infringement, including similarity between the marks, the actual goods or services, and how well they're known on the market (4.2). And further, in 4.3-4.5, they make the case that the overall judgment on the case must take into account the likelihood that the "average consumer" will confuse the two marks.

The document refers to some cases brought before the European Court of Justice. In Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, the ECJ ruled the following:

37 The answer to be given to the questions referred must therefore be that, in order to determine whether a statement or description designed to promote sales of eggs is liable to mislead the purchaser, in breach of Article 10(2)(e) of Regulation No 1907/90, the national court must take into account the presumed expectations which it evokes in an average consumer who is reasonably well-informed and reasonably observant and circumspect. However, Community law does not preclude the possibility that, where the national court has particular difficulty in assessing the misleading nature of the statement or description in question, it may have recourse, under the conditions laid down by its own national law, to a consumer research poll or an expert's report as guidance for its judgment.

Our boldface. This is effectively the same requirement as the wonderfully named "moron in a hurry" rule of English case law. Wikipedia:

It appears to have been used first by Mr Justice Foster in the 1978 English legal case of Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113.[1] In this case, the publishers of the Morning Star, a British Communist party publication, sought an injunction to prevent Express Newspapers from launching their new tabloid, which was to be called the Daily Star. The judge was unsympathetic. He asked whether the plaintiffs could show:

a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs' business and that as a consequence damage is likely to result to the plaintiffs

and stated that:

if one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled.

The "moron in a hurry" was also cited in the Beck v. Eiland-Hall case, featuring the infamous Glenn Beck.

So under trademark law, when Mojang has a trademark for "Scrolls" and Zenimax has a trademark for "Elder Scrolls", it doesn't follow that Mojang's trademark means they automatically own the rights to everything with the word "Scrolls" in it. Instead, as explained in Sabel BV v Puma AG:

Mere association alone is not enough to justify a finding of a likelihood of confusion

As we explained, Mojang's trademark for Scrolls doesn't mean they can sue anyone who has the word "scrolls" in the title of their game. It means that if someone else releases a game called Scrolls or something very similar, that consumers will mistake for Mojang's scrolls, then Mojang can take action.

Similarly, Zenimax's existing trademark on "The Elder Scrolls" doesn't mean they "own" that phrase or any of the words in it. Instead, to uphold their claim of trademark infringement against Mojang, they must demonstrate that a "reasonably well-informed and reasonably observant and circumspect" consumer would mistake Mojang's Scrolls for Skyrim.

This is what Zenimax sets out to prove in the papers they filed in Stockholm, and frankly, we find it amusing. The best part is 4.14:

Även innehållet i de dator- och videospel som tillhandahålls eller planeras att tillhandahålls under de motstående kännetedknen uppvisar stora likheter. Båda är exempelvis äventyrsspel som innefattar magi och utspelas i en bergsrik fantasivärld. Dessa likheter är uppenbara vid jämförelse mellan den officiella trailern för ZeniMax spel THE ELDER SCROLLS V: Skyrin som lanserades 23 februari 2011 och den första trailern för Mojangs spel SCROLLS som lanserades den 25 augusti 2011. Representativa skärmbilder och kopior av respektive trailer lilägges, bilaga 13-15.

In this section, Zenimax claims that the content of the games is very similar. The boldfaced sentence reads: "Both are, for example, adventure games that include magic and take place in a mountain-rich fantasy world." As proof, they offer the official trailer for Skyrim, which has mountains, adventure gaming and magic in it, and the Scrolls teaser, which has no gameplay footage at all, but admittedly does include some mountains.

This is where it all gets really stupid. On scrolls.com, the game is described as follows by Jakob Porser, its lead designer:

The game we envisioned had elements from the collectible card game genre as well as from traditional board games. It would be a strategic game with a strong foundation in tactical game play but with a touch of random and chance guaranteeing a never-ending stream of curve balls. You would control the outcome of battle by creating, modifying and refining your arsenal to overcome the obstacles in your path. The game would challenge you with ever changing content and let you explore the world and cleanse the lands of harm, one monster at the time. It would give you the opportunity to test yourself with your peers by battling other players using a long list of tournament templates ranging from friendly matches to ranked league matches. From quick, small sized tournaments to world championships!

Notice that it says "collectible card game genre" and "traditional board games". Here's how the game was discussed in an article on Wired UK this March:

Wired UK: Scrolls: Minecraft creators reinvent collectible card games

Swedish independent games developer Mojang, which is behind the phenomenally-successful Minecraft, has announced its newest title -- Scrolls.

Scrolls will be a hybrid of collectible card games, such as Magic: The Gathering, and boardgames. Players place different units, buildings and siege weapons on a virtual gameboard, assembling a collection of scrolls to play from before the battle begins. To win, you'll need to balance up spells, units, equipment and resources. Some sample cards can be seen in the gallery above.

"I don't think there are many similarities between Minecraft and Scrolls, if any," Jakob Porser, lead designer on Scrolls told Wired.co.uk. "I guess you could say that both games encourage the player to actively take part of the game and not just sit idle as a story unfolds in front of them, but as for genre they really do not have anything in common."

Where, in all this, do you get an adventure game set in a mountain-rich environment? Here's some sample cards from Scrolls. Cards, because it's a CCG.

How can anyone in their right mine confuse that with Skyrim? To paraphrase the "moron in a hurry" idea, how much of a moron, and in how much of a hurry, would you have to be to think Scrolls was Skyrim?

Here we'll gladly submit ourselves as evidence. It should be obvious to anyone reading this blog that its authors are complete morons. Yet even we never confused Scrolls for Skyrim. The short introductory text on the scrolls.com website was enough for us to realize that Scrolls is a lame Magic: The Gathering rip-off, and we're not interested. Meanwhile, we've been under the constant impression that Skyrim won't be a collectible card game but, in fact, a role-playing game. Or, if you like, an adventure game involving magic and all that.

As we said earlier, The Elder Scrolls series is a 17-year-old, multi-million-selling game series of no small fame in the gaming community. Indeed, Zenimax themselves allege just this in the papers they filed. Yet they're claiming that gamers will accidentally go online and download Scrolls, thinking that they're going on Steam or down to the shops to buy Skyrim. Further, they're saying that Mojang are deliberately trying to confuse people into doing that.

They go even further in 5.5, where they maintain that Mojang's plan to give out alpha versions of Scrolls at Minecon 2011 will "dramatically increase the damage to Zenimax".

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In our opinion, there's no way any "reasonably well-informed and reasonably observant and circumspect" average consumer is going to accidentally download Scrolls, thinking that they're buying Skyrim. Surely gamers can tell the difference between a downloadable card game and a mass-marketed computer role-playing game. What makes the Zenimax case totally ridiculous is that they either don't realize that Scrolls is a collectible card game, or they're deliberately misrepresenting Scrolls to the court. We anticipate Mojang should have a fairly easy time pointing out that Scrolls is not, in fact, an adventure game involving magic, set in a mountain-rich environment.

Only a complete moron with their hair on fire could possibly buy Scrolls and think he had bought Skyrim.

We think - and this is pure speculation - that Zenimax were gambling on Mojang not risking a court case and the risk of substantial damages. Now that they are going to court, in our opinion Zenimax's case rests entirely on substantiating a plot by Mojang to deliberately hoodwink customers into confusing Scrolls and Skyrim. We find it hard to imagine that succeeding. Apparently Mojang feel the same way, which is why they're going to court. We applaud their bravery in doing so.

We don't know why Mr Pitts wrote his uninformed attack on Mojang and attempted to brand them as dishonest trademark trolls, and it would be illiberal of us to speculate, let alone to speculate on the motivations of people who were prompted by Mr Pitts's article to attack Notch on Twitter. We don't want to make the opposite case, either, and claim that Zenimax is an evil corporation bullying independent game developers around with its legal department, even if we wouldn't be the only ones saying that. We don't know if there's a villain in this story at all. Maybe Zenimax genuinely do believe that Mojang are dealing dishonestly, although we find that difficult to swallow. It's even harder to believe the case Zenimax are making. For all we know, though, they may even be right. We can't claim any insight into Mojang's operations.

Overall, we find ourselves at an uncomfortable impasse, because even though we think Mojang's Minecraft is one of the best PC games ever made, we think The Elder Scrolls III: Morrowind shares that distinction. We were also pleasantly surprised by Fallout 3 and Fallout: New Vegas, both excellent Bethesda games published by Zenimax.

Even if there isn't a villain in this story, though, in our opinion Zenimax is certainly acting like one. Unless their claims of Mojang's malicious intent are conclusively and thoroughly upheld in court, this will look like a big game company trying to trample all over a popular independent developer. Even worse, they're grossly misrepresenting what Scrolls is in an attempt to get money from Mojang. If they were really this concerned about the integrity of their trademark, wouldn't they go after, say, the browser game "Scroll Wars"? That actually is an RPG, unlike Scrolls.

In this day and age, we think few people are going to side with the big corporation making unreasonable accusations against the cheerful, sympathetic indie developer. It's a virtual certainty that the bad PR from this lawsuit has already caused far more damage to Zenimax than any hypothetical Skyrim sales lost to Scrolls ever could.

As for Mr Pitts's article and the people attacking Notch and Mojang because of it, we can only bemoan the fact that in the Information Age, people can't even be bothered to find out what a trademark is before accusing Mojang of "trying to patent a word". Clearly these people have access to the Internet; they could try to make at least some effort to understand how trademarks work before, say, writing an article that tries to make Mr Persson into Dr Langdell. It reflects poorly on Kotaku that they should publish such an ill-informed personal attack during a fairly high-profile court case.

The patent system is broken

Here's some reading on patents.

The Economist: Patents against prosperity

At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation. We rarely directly confront the effects of this immense waste of resources and brainpower and the attendant retardation of the pace of discovery, but it affect us all the same. It makes us all poorer and helps keep us stuck in the great stagnation.

Huffington Post: The Spoilsmen: How Congress Corrupted Patent Reform

When legislators first introduced a patent bill in 2005, they designed it to lower the costs of lawsuits burdening Internet and software companies. Lured by the big, juicy settlements to be won by suing huge companies for intellectual property theft, an entire industry had emerged around patent chasing alone. These so-called "patent trolls" don't produce any goods. Instead, they secure unclaimed patents for ideas in use and try to cash out in court.

Trolls file hundreds of lawsuits a year over "low quality" patents -- lobbyist legal jargon for the questionable or downright bizarre patents routinely granted by the understaffed Patent and Trademark Office. In recent years, patents have been approved for products including a wheeled flower pot (patent No. 7,908,942), the crustless peanut butter and jelly sandwich (patent No. 6,004,596), a decorative box that can be placed in a casket (No. 7,908,942) and an accounting scheme that helps people dodge taxes by moving stock options around (No. 6,567,790). Once approved by the patent office, it's difficult and costly to overturn the patent in courts, which grant significant deference to the office's decisions.

And finally, Mark A. Lemley's paper, The Myth of the Sole Inventor.

The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.

Having read through this stuff, it's actually interesting to speculate where our "sole inventor" myth even comes from in the first place.

Banning fictional child pornography is wrong

I'll let the Ottawa Citizen introduce the subject:

Ottawa Citizen: Crimes of imagination

Canada has charged an American and is threatening him with at least a year in jail because he came over the border in 2010 with comics on his laptop, comics the customs officer decided were child pornography. If he's convicted, he faces a mandatory minimum sentence of a year for importing the material. This case and others like it demonstrate the flaws in Canada's law.

According to the Comic Book Legal Defence Fund, the comics were in the "manga" style that originated in Japan (Astro Boy and Sailor Moon are examples of manga comics. Charles Brownstein of the CBLDF says he believes the comics in this case include images of stick figures in sexual positions).

The Canadian law criminalizes fictional child pornography, by which I mean pornographic material like drawings or text that features children, but that no real children were abused in the making of. I'll let the Citizen finish:

But Canada's current law goes beyond pornography that causes harm to children. It also makes some works of the imagination - stories and drawings - illegal if they depict people under the age of 18 in sexual situations. Many classic works of art might meet that definition, and the law does allow for a defence on the grounds of artistic merit. This puts the courts in the bizarre position of determining what is a work of art. Citizens cannot hope to know in advance what the law really forbids, and whether the judge will share their opinion of what is art. Policing the way you express yourself on a piece of paper or on your laptop comes awfully close to policing your thoughts.

Judges are not meant to be arbiters of taste; they are meant to balance rights in a free society. Imaginary people do not have rights.

Similar laws are in the works in Finland as well, where it will join other highly questionable laws that already make even the definition of child pornography arbitrary. In fact, Finnish courts are already not only determining what constitutes art, but also whether parody is succesful, because that is the determining criterion to whether a parody constitutes an IP violation. So in Finland, courts determining what is art won't be anything new.

If you think they're exaggerating about policing thoughts, by the way, Finland's state police have already applied for a law criminalizing talking about having sex with children in an approving manner. I so wish I was making that up.

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There are those who say that protecting children from sexual abuse is so important that we must do anything to stop it. Whatever one may think of this, laws against fictional child pornography fail on that count.

Daily Mail: Charity's anger at proposal to make child porn legal 'to protect children from abusers'

The research found that child sex crimes fell when child pornography was more easily accessible.

The discovery tallies with similar studies in Denmark and Japan, where child pornography is not illegal, that found incidences of child sex abuse were lower in those countries.

The conclusion of the new study is that ‘artificially-produced’ child pornography should be made available to prevent real children being abused.

Pornography was strictly prohibited in the Czech Republic between 1948 and 1989.

The ban was lifted with the country's transition to democracy and, by 1990, the availability and ownership of sexually explicit materials rose dramatically. Even the possession of child pornography was not a criminal offence.

Diamond and his team looked at what actually happened to sex-related crimes as it moved from having a strict ban on sexually explicit materials to the material being decriminalised.

Results from the Czech Republic showed that rape and other sex crimes have not increased following the legalisation and wide availability of pornography.

Most significantly, the incidence of child sex abuse has fallen considerably since 1989, when child pornography became readily accessible – a phenomenon also seen in Denmark and Japan.

They also found that the number of cases of indecent exposure and other, less serious, sex crimes fell dramatically in the wake of pornography becoming more readily available.

The researchers say: ‘As with adult pornography appearing to substitute for sexual aggression everywhere it has been investigated, we believe the availability of child porn does similarly.’

So not only are no children harmed in the making of fictional child pornography, its availability seems to decrease sex crimes against children. In general, pornography decreases sex crime, so this finding makes sense. I know that this cuts no ice with determined anti-pornography crusaders, who replace scientific data with claims that porn makes you gay, but the reality is that fictional child pornography, if anything, seems to make children more safe.

However, that's a terrible argument for not banning it. The Ottawa Citizen put it quite nicely when they said:

There's no point in having a right to free speech if we make exceptions for everything that people find distasteful or offensive.

In fact, that's the kind of free speech we have in Finland; our constitution guarantees Finnish citizens freedom of expression, except when constrained by law. In other words, our constitution gives us a right to say things that we're not banned from saying. Some right! The only place I can think of that doesn't allow its citizens to do things that aren't specifically forbidden is the fictional city of Raseir in the classic CRPG Quest for Glory 2, which boasted a street named "Everything Not Mandatory is Forbidden". So we, as Finnish citizens, have more rights than the inhabitants of a fictional computer game dictatorship.

Hooray!

But I digress. As a criterion for banning expression, the harm it causes is a dangerous guideline. In nearly every debate on free speech, someone quotes the example of shouting "fire!" in a crowded theater. It might be salutary to remember where the expression comes from: it was used by Supreme Court Justice Oliver Wendell Holmes, Jr., to justify sentencing a man to six months in prison for distributnig anti-draft leaflets. It was the judge's opinion that inciting people against the draft posed a "clear and present danger" to the United States, and was therefore illegal.

This tug-of-war between the desire to criminalize dissent and uphold freedom of expression should serve to point out that the harmfulness or harmlessness of speech is insufficient in itself as a criterion. Harm is a flexible concept that can be stretched a long way, and if we subordinate free expression to a critetion of harm, are we really willing to ban anything that can be considered, or even proven, to have harmful effects?

Suppose that someone demonstrated that people who read detective novels are more likely to commit violent crime than people who don't? Or, to take a real-life example, someone came up with data to support the decades-old idea that comic books predispose childrne to crime? Would you then be willing to ban detective novels and comic books under the same criteria as fictional child pornography? After all, they'd be harmful. Remember that as far as we know, no form of expression can directly cause a person to commit a crime; all they can do is predispose. That's a matter of much correlation and very little causation.

This is why it's dangerous, and I believe in many cases morally dishonest to argue against banning fictional child pornography just by quoting its beneficial effect on sex crime rates. That isn't actually an argument in favor of freedom of expression; it's an argument that this particular kind of expression is beneficial and should therefore be allowed. It's a whole different story, and begs the question: if the data should be refuted by a better study, would you change your mind? And would you support the hypothetical comic-book ban if data in its favor were produced? If not, you're making a morally dishonest argument.

**

In other words, this isn't a question of whether fictional child pornography is beneficial or harmful, but of what the limits of free expression are. It's been shown time and again that juging expression by the harm it supposedly causes is a primrose path to censorship. I can't believe that even the most ardent anti-child pornography crusaders would want to live in a country where all expresion is regulated based on whether it's deemed harmful to society or not. There's practically no limit to what such a dystopia might end up banning. After all, people are healthier if they're happy; therefore things that make them unhappy make them less healthy, and are therefore harmful. Under this rationale anything could be banned.

The only rationale for the outright ban on child pornography is that a child was necessarily abused to create the image. It should be recognized that this is also a problematic piece of reasoning; technically, it could equally well be used to ban pictures of terrorist attacks. Even if we accept the ban on child pornography, we can't extend it to fictional child pornography using the same rationale, because no children were necessarily abused for its creation. We don't ban other fictional depictions of crime, even other fictional depictions of sex crime, so why should the sexual abuse of children be treated differently?

Any ban of fictional child pornography necessarily creates one of two disturbing precedents: either that expression can be regulated according to its harmfulness, or that when it comes to child pornography, a different standard of civil rights prevails. Finland is currently pursuing the latter policy. Neither should be chosen by a free country.

Criminal insanity, online and off

First, a piece of madness I must have missed when it hit the news and just happened to run into.

NY Daily News: Florida mom Alexandra Tobias pleads guilty to murdering baby for crying during her FarmVille game

A Florida woman admitted shaking her 3-month-old baby to death after the little boy's crying distracted her from playing a wildly popular Facebook game.

Alexandra Tobias, 22, told cops she was playing FarmVille and her baby, Dylan Lee Edmondson, wouldn't stop crying.

According to the Florida Times-Union, she confessed to shaking the baby, smoking a cigarette to calm down and then shaking the baby again. The baby may have hit his head during the January incident.

Tobias pleaded guilty on Wednesday.

She later got a 50-year sentence. And here I thought FarmVille was bad for you before I knew about this.

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Here's another example of criminal insanity:

FOX Chicago: Teen Charged with Murder in Police-Involved Shooting, Armed Robbery Case

Ross was charged Thursday evening with murder and armed robbery with a firearm, police News Affairs Officer Robert Perez said.
The incident unfolded about 8 p.m. Wednesday when two police sergeants were stopped by a person saying two people had just committed a robbery near East 70th Street and South Cregier Avenue.

The sergeants saw two people matching the description and ordered them to stop, police said. One of the suspects, with a weapon in his hand, turned in the sergeant’s direction. The sergeant shot the suspect, identified by the Cook County Medical Examiner’s office as 15-year-old Tatioun Williams.

Williams, of 1311 E. 69th St., was pronounced dead at 8:40 p.m. at Northwestern Memorial Hospital, according to the medical examiner’s office. An autopsy Thursday found he died from a gunshot wound to the back and ruled the death a homicide.

A weapon and proceeds from the robbery were recovered at the scene, police said.

No one else was injured, police said.

So two guys commit an armed robbery, and as they're escaping, the police shoot one of them. Therefore, the surviving criminal is charged with murder.

This is how the felony murder rule works: if one perpetrates a felony, and as a result someone is killed, the perpetrator is charged with the murder. Here, the result even means that if the police shoot your accomplice, you are charged with his murder.

Another example of this idea in action here:

NY Times: Serving Life for Providing Car to Killers

CRAWFORDVILLE, Fla. — Early in the morning of March 10, 2003, after a raucous party that lasted into the small hours, a groggy and hungover 20-year-old named Ryan Holle lent his Chevrolet Metro to a friend. That decision, prosecutors later said, was tantamount to murder.

The friend used the car to drive three men to the Pensacola home of a marijuana dealer, aiming to steal a safe. The burglary turned violent, and one of the men killed the dealer’s 18-year-old daughter by beating her head in with a shotgun he found in the home.

Mr. Holle was a mile and a half away, but that did not matter.

He was convicted of murder under a distinctively American legal doctrine that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies.

In all seriousness, this is insane. As the New York Times article says, this law doesn't actually seem to have any deterrent effect, by comparison with jurisdictions that don't have it. Furthermore, it blurs the definition of murder; as the paper referenced by the New York Times points out, murder is defined by an intent to kill, except in this case, where you can be guilty of murder by lending your car to someone.

What makes it even more dangerous, in my opinion, is the simple precedent that a person who is in no way directly responsible for a crime, and who may even be totally unaware that it has occurred, can be charged with it. Imagine extending that idea to other crimes.

But most of all, it's completely unrealistic to postulate, even as a system of ethics, that everyone must take responsibility for all consequences of their actions. Responsibility for consequences needs to be within reason; if someone lends a homicidal friend a shotgun, I have no problem with them being held culpable, but lending someone a car doesn't seem to be strictly comparable.

Even crazier is the notion that when the police shoot your accomplice in the back, you're guilty of murder. Yes, I accept the idea that had you not been involved in the armed robbery in the first place, your friend wouldn't have been shot. But is this in any way a realistic standard of ethics? If people are going to be held criminally liable for the actions of others, where on earth do we draw the line? And doesn't this, in fact, give police a virtual blank check when pursuing a felony suspect, because any deaths that occur during the crime and subsequent pursuit will be blamed on the suspect, whether he had anything to do with them or not?

This touches on what I've been thinking about in general with regard to law lately. It seems to me that on the whole, our legislation is essentially random. I've been toying around with the idea of constructing a legal code not as a confusing jumble of separate laws but as a system of principles. Surely one of those principles should be that a person can only be held responsible for his own actions or inactions, not for the actions or inactions of others. In this case, both armed robbers should be responsible for themselves, and the cop who shot one of them responsible for the shooting. If the shooting is deemed justified, then it is, but under no stretch of the imagination should the police officer's decision to use lethal force be the other robber's responsibility.

I'll chalk this up as yet another odd aspect of an increasingly insane US justice system. Here's another example:

Wired: There’s a Secret Patriot Act, Senator Says

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information.

The United States seems to be reaching the point where legistlation is classified to protect national security.

I'd comment, but I don't know how.

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Here's some surveillance state news, too.

Nature: Terrorist 'pre-crime' detector field tested in United States

Planning a sojourn in the northeastern United States? You could soon be taking part in a novel security programme that can supposedly 'sense' whether you are planning to commit a crime.

Future Attribute Screening Technology (FAST), a US Department of Homeland Security (DHS) programme designed to spot people who are intending to commit a terrorist act, has in the past few months completed its first round of field tests at an undisclosed location in the northeast, Nature has learned.

Like a lie detector, FAST measures a variety of physiological indicators, ranging from heart rate to the steadiness of a person's gaze, to judge a subject's state of mind. But there are major differences from the polygraph. FAST relies on non-contact sensors, so it can measure indicators as someone walks through a corridor at an airport, and it does not depend on active questioning of the subject.

The tactic has drawn comparisons with the science-fiction concept of 'pre-crime', popularized by the film Minority Report, in which security services can detect someone's intention to commit a crime. Unlike the system in the film, FAST does not rely on a trio of human mutants who can see the future. But the programme has attracted copious criticism from researchers who question the science behind it (see Airport security: Intent to deceive?).

Do, in fact, see the linked article, which starts off with this:

In August 2009, Nicholas George, a 22-year-old student at Pomona College in Claremont, California, was going through a checkpoint at Philadelphia International Airport when he was pulled aside for questioning. As the Transportation Security Administration (TSA) employees searched his hand luggage, they chatted with him about innocuous subjects, such as whether he'd watched a recent game.

Inside George's bag, however, the screeners found flash cards with Arabic words — he was studying Arabic at Pomona — and a book they considered to be critical of US foreign policy. That led to more questioning, this time by a TSA supervisor, about George's views on the terrorist attacks on 11 September 2001. Eventually, and seemingly without cause, he was handcuffed by Philadelphia police, detained for four hours, and questioned by Federal Bureau of Investigation agents before being released without charge.

George had been singled out by behaviour-detection officers: TSA screeners trained to pick out suspicious or anomalous behaviour in passengers. There are about 3,000 of these officers working at some 161 airports across the United States, all part of a four-year-old programme called Screening Passengers by Observation Technique (SPOT), which is designed to identify people who could pose a threat to airline passengers.

It remains unclear what the officers found anomalous about George's behaviour, and why he was detained. The TSA's parent agency, the Department of Homeland Security (DHS), has declined to comment on his case because it is the subject of a federal lawsuit that was filed on George's behalf in February by the American Civil Liberties Union.

Again, I'm not sure how to comment on this. It's terrifying.

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It seems fitting that just as my copy of The Gulag Archipelago arrived in the mail, I saw this news item:

Guardian: China used prisoners in lucrative internet gaming work

As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.

Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.

"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."

In the Soviet Union, it was gold-mining on the Kolyma: in China, it's World of Warcraft. Surreal. However, they haven't abandoned their efforts at reforming the inmates:

He was also made to memorise communist literature to pay off his debt to society.

You can't make this stuff up. It only happens in real life.

Independent links

Today is Finland's independence day, and to appropriately honor this country's history and its people's patriotism, I'm going to ignore it. Here's some links instead.

* Johan Norberg: GDP and its enemies

* (via The Agitator): Legalizing child pornography is linked to lower rates of child sex abuse: study

Results from the Czech Republic showed, as seen everywhere else studied (Canada, Croatia, Denmark, Germany, Finland, Hong Kong, Shanghai, Sweden, USA), that rape and other sex crimes have not increased following the legalization and wide availability of pornography. And most significantly, the incidence of child sex abuse has fallen considerably since 1989, when child pornography became readily accessible – a phenomenon also seen in Denmark and Japan. Their findings are published online today in Springer's journal Archives of Sexual Behavior.

The findings support the theory that potential sexual offenders use child pornography as a substitute for sex crimes against children. While the authors do not approve of the use of real children in the production or distribution of child pornography, they say that artificially produced materials might serve a purpose.

* Wired: Lieberman Introduces Anti-WikiLeaks Legislation

The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend a section of the Espionage Act that already forbids publishing classified information on U.S. cryptographic secrets or overseas communications intelligence — i.e., wiretapping. The bill would extend that prohibition to information on HUMINT, human intelligence, making it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Leaking such information in the first place is already a crime, so the measure is aimed squarely at publishers.

In short, videogame hater Joe Lieberman is now going after Wikileaks by trying to criminalize publishing information concerning the human intelligence activities of the United States. Free what?

Random update

First, rejoice, because the West Memphis Three are finally getting a new hearing.

Then read an excellent article in the National Post on the War on Terror: Stalin would have been proud.

Okay, the second item there is a bit depressing, but I'm cheerful; last Saturday I had the great pleasure of seeing an awesome burlesque show by Miss Indigo Blue.

She kicked ass. For some strange reason, the next act was Canada's own Bloodshot Bill, who is now officially my favorite Canadian artist ever.

Good times!

Police brutality, part I

Commuter trains are more dangerous places than you might think. So dangerous, in fact, that San Francisco's Bay Area Rapid Transit system employs its own police department of some 300 officers, complete with its own SWAT team.

On New Year's Eve, 2009, the BART trains were packed, and at around 2 a.m. a fight broke out on one, involving a dozen people. Several BART police officers moved in to break it up.

What happened next is disputed, although there are a bunch of cell phone videos of the incident. As people were being cuffed, according to one witness, two police officers rushed a young man called Oscar Grant, and one of them punched him in the face. This officer, called Pirone, and officer Johannes Mehserle, wrestled Grant to the ground. Pirone stood over Grant and called him a "bitch-ass nigger" (SF Chronicle).

San Francisco Chronicle:

Video footage played repeatedly in court showed that as Mehserle raised his gun, Pirone had his left knee on Grant's neck. Pirone's left hand was pressing Grant's head into the platform, and Pirone's right hand was holding Grant's right arm - the same one Mehserle said he had struggled with - behind his back.

As Grant was lying on the ground, restrained by the two officers, Mehserle drew his service handgun and shot Grant in the back. Mehserle claims he was trying to use his taser, but confused his gun for the taser and shot Grant by accident. The jury in his case agreed, and he was found guilty of involuntary manslaughter.

When the verdict was announced, several hundred people disagreed and rioted. Mehserle will be doing prison time, and resigned from the BART police after the shooting. Officer Pirone was fired, as was his partner, for the same incident.

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This is the first post in a new series on police brutality. I thought I'd lead with the most recent example of totally excessive force, whatever the actual story behind it. More to the point, as the Oakbook points out, in the 12 months before Oscar Grant was killed, law enforcement officials killed 102 people in the state of California. Meaning that every three days, someone was shot by the police, just in California. What makes the Oscar Grant case unprecedented isn't that someone was shot, but that the police officer in question actually went to court for it, and was accused of murder.

Interestingly, the majority of the people shot by the police in California were Hispanic. As a European, I've always found "Hispanic" to be the most confusing "race" in the United States. The way they see it, when you cross the Pyrenees, you cross a racial boundary. I find that somewhat insane. Also, I was never able to understand whether Brazilians count as Hispanic or not. Hispanic obviously comes from Hispania, the Roman name for the Iberian Peninsula, so it might include Portugal and Portuguese speakers.

Wikipedia tells me that in the US, Brazilians either are or aren't considered Hispanics. So, depending on which definition you like, I either have a good segue into a Hispanic getting shot on a train or not. If you don't accept that Brazilians are "Hispanic" by American standards, then you can read about an electrician getting shot here and segue from that.

Those of you that follow the news may remember that in July 2005, the British police shot a Brazilian electrician called Jean Charles de Menezes on the Tube. It's a scary story.

On July 22, 2005, the Metropolitan Police and various other arms of the British government were looking for the terrorists responsible for the previous day's failed bomb attack on the subway system (and a bus). Some of them were watching a block of flats where they suspected some of the terrorists, who were of Middle Eastern or African extraction, were staying. de Menezes was staying at the same block of flats with two of his cousins, and had just been called to fix a broken fire alarm at Kilburn.

Armed officers followed de Menezes from his flat to the subway station. The police were instructed to follow him and prevent him from entering the subway system, as he was believed to be a terrorist. It's worth noting at this stage that the only reason anyone thought he was a terrorist was that he lived in a block of flats that was under police surveillance, and looked foreign. Later, in an attempt to justify following de Menezes, the Met photoshopped a picture of him to make it look more like one of the terrorist suspects (Independent).

Being followed by the police, de Menezes made his way to Stockwell station and got on the subway. Some people may remember reports that he ran away from the police and vaulted a security barrier; those aren't true. The person who jumped over the turnstile was one of the officers. Similarly, reports that he was dressed "suspiciously" are untrue.

De Menezes boarded a train perfectly normally and took a seat. Just as he's sat down, several plainclothes police officers ran into the car, knocked him onto the ground and shot him in the head.

As the Telegraph reports, despite claims to the contrary, the Independent Police Complaints Commission found that the officers did not challenge de Menezes in any way or identify themselves.

The Independent Police Complaints Commission (IPCC) report said police had given the Brazilian no instruction "that an innocent man would have understood".

IPCC Commissioner Naseem Malik said: "There is no action he could have consciously taken that would have saved him".

The revelations contradicted the Met's insistence that Mr de Menezes failed to obey a challenge by police at Stockwell Tube station.

What happened was that de Menezes was suddenly attacked by people in ordinary civilian clothes. One of them grabbed him, pinned his arms behind him and forced him down into his seat. While he was being restrained, the other officers shot him in the head seven times at point-blank range. One other bullet hit him in the shoulder, and three apparently missed. He died on the scene.

He was never challenged or even spoken to; he was simply grabbed by the police, restrained and executed. And they didn't even know who he was.

In the inquiries that followed, it emerged that the British police were operating under a policy known as "Operation Kratos". There is a report by the Metropolitan Police Authority on it here. One of the provisions of the policy is that if police are facing a suicide bomber, their only recourse is to shoot him in the head. The explosives most suicide bombers carry are so volatile that a gunshot to them would detonate them, say the police, and they believe that if a suicide bomber thinks he has been identified, he will detonate the explosives.

Whether that's reasonable or not, I'm not one to judge. The way it was implemented, though, is nothing short of shocking. The police had no evidence whatsoever that de Menezes was a suicide bomber, and, of course, he wasn't. Witnesses say de Menezes didn't react in any way to the police coming onto the train, and even as he was being restrained and had a gun held to his head, he appeared calm. Despite the fact that his arms were pinned back, totally restraining him, and that he wasn't wearing any kind of bomb, resisting arrest or behaving in a threatening way, the police officers executed him.

No charges were ever raised against any of the officers, and it was determined that they all acted properly and appropriately. The Metropolitan Police apologized for de Menezes's death, but as far as anyone knows, all the officers involved are still serving with the police.

**

One incident that also sprang to mind after the BART shooting was that of Wolfgang Grams, a member of Germany's Rote Armee Fraktion, a Communist terrorist organization. In 1993, Germany's antiterrorist police unit, GSG-9, was arresting Grams on the platform at Bad Kleinen station. Grams and the police exchanged fire, and he shot two officers, one of whom died.

According to the police, Grams then fell off the platform and shot himself in the head. He was airlifted to hospital but died of his injuries there. His death has always been controversial; the officers present maintain that he shot himself, while there are persistent rumors that he was executed by GSG-9. Ordinarily, I'd think "persistent rumors" like that are pure bunk, if it wasn't for the way some of his fellow terrorists died.

October, 1977. Four members of the Red Army Fraction are being held in maximum security solitary cells in Stammheim prison, in Stuttgart. Since September 6, all four had been denied any mail, telephone use or visits, because of allegations that they continued to direct terrorist activity from their cells. They were also forbidden from contacting each other.

On the 18th of October, Gudrun Esslin was found hanged in her cell. Jan-Carl Raspe was found dead by gunshot, as was Andreas Baader. The fourth RAF member in the high security wing, Irmgard Möller, was alive. She had allegedly stabbed herself in the chest four times.

Möller had since told the press that none of the deaths were suicides, and that she never attempted to kill herself. Certainly stabbing yourself in the chest four times is an unlikely suicide method, but it isn't even the least likely one. It's significant that both men died from gunshot wounds, while one of the women was hanged and the other stabbed. One of them, Jan-Carl Raspe, died from quite an unlikely gunshot, too.

There were no less than three bullet holes in Raspe's cell, but the most significant was the one in him. According to the autopsy, Raspe shot himself in the back of the neck. There was an exit wound in his forehead. Anybody reading this is welcome to try to work out how that's physically possible.

Raspe's suicide is only one of a series of unexplained details in the deaths. At least two of the dead terrorists had written to their lawyers that they suspected the prison authorities were planning to kill them. The official explanation is that when an operation that was partly planned to give them their freedom, the hijacking of a German airliner, went wrong, the prisoners decided to kill themselves. Irmgard Möller, though, maintains they didn't even know about what was going on in Mogadishu.

To be honest, I don't know what happened to any of the four people at Stammheim, or for that matter to Wolfgang Grams or Ulrike Meinhof, who also allegedly hanged herself at Stammheim. The reason I'm going through this is that the shooting of Oscar Grant powerfully reminded me of Wolfgang Grams's death.

But surely the idea of police officers, or whoever is supposed to have killed the RAF members, murdering people and getting away with it is ridiculous?

**

In September 1999, a 46-year old Scots decorator was making his way home to his Hackney flat. He'd been to the local pub, and was carrying a table leg that his brother had been restoring with him, wrapped in a plastic bag. For reasons of their own, someone at the pub called to police to report that a man with "an Irish accent" had just been there, carrying a gun in a plastic bag.

A Metropolitan Police armed response vehicle was directed to the site, and found the man, names Harry Stanley. As the officers challenged him, Stanley turned around to face them. As he turned, the officers shot him. He died on the scene.

After several inquests and deliberations, the officers were held to have acted in self-defence, and returned to duty without facing criminal charges. Why they needed to defend themselves against a non-threatening man armed with a table leg, and why they needed to kill him in the process, was a question the British justice system didn't see fit to answer.

Initially, though, the officers were suspended. In protest, over 100 armed police officers turned in their weapons, because they thought it was so unreasonable that their colleagues had been suspended for shooting an innocent, unarmed man.

To be fair, Stanley was carrying a table leg. In April 2009, 47-year-old newspaper vendor Ian Tomlinson was on his way home from work during the G20 protests. As he walked past a police cordon, innocuously minding his own business, one of the riot police attacked him from behind, hitting him with a baton and knocking him to the ground. Tomlinson was injured and later died of a haemorrhage. An investigation was underway but nothing has been heard for almost a year.

Finally, any review of people killed by the Metropolitan Police would hardly be complete without mentioning Blair Peach. He was actually attending a demonstration in 1979, on behalf of the Anti-Nazi League. According to fourteen witnesses, Peach was hit over the head by a police officer. The blow broke his skull, and he later died in hospital. An internal inquiry by the Met concluded that Peach was killed by a police officer, but they couldn't identify the officer because none of the officers present would co-operate with the inquiry.

The Peach case is one of the most shocking examples of the blue wall of silence; the refusal of police officers to testify against one of their own, seemingly no matter what they've done. It continues to be universal policy in police forces around the world, even in the West.

**

The point of this rather long post is to introduce the reader to the idea that people are being killed by the police practically every day. According to statistics from the FBI, from 2004 to 2008 over three hundred people were killed by law enforcement in the United States. In four of those years at least one person was killed by the police every day.

Considering the population of the United States, that isn't really a lot. Then again, looking at spectacular cases like Sean Bell and Amadou Diallo, not to mention the ones I've talked about here, even one death like Jean Charles de Menezes's is too many.

From mistaking a taser for a gun to executing a Brazilian electrician on the subway, deaths are the most spectacular examples of police brutality. Overall, largely due to nationalist indoctrination, most citizens of Western countries have a ridiculously high level of trust in the police. I think that it's worth reminding everyone that it may not be justified. When de Menezes was executed, the reaction of many people was that he must have done something to deserve it. The idea that the police would murder an innocent person is so impossible to so many people that they'll grasp at any cognitive straw to avoid admitting that the police might do something wrong. This is how the totally false reports that de Menezes vaulted over a ticket barrier or was wearing suspiciously heavy clothes circulated: people wanted to believe that he must have done something.

In fact, he didn't do anything wrong. Neither did Ian Tomlinson or Blair Peach, neither of who even had any kind of criminal record. All of them were simply innocent, everyday people going about their daily lives until they were murdered by the police. And none of the police officers involved were even charged with anything.

So really, this is the most powerful reason to care about police brutality. No matter who you are, it could happen to you.

Obama wins immunity for Bush

Salon: Obama wins the right to invoke "State Secrets" to protect Bush crimes

In a 6-5 ruling issued this afternoon, the 9th Circuit Court of Appeals handed the Obama administration a major victory in its efforts to shield Bush crimes from judicial review, when the court upheld the Obama DOJ's argument that Bush's rendition program, used to send victims to be tortured, are "state secrets" and its legality thus cannot be adjudicated by courts.

With this, the Obama administration has effectively made sure that no-one who was tortured or wrongfully imprisoned by the US government during the Bush administration can ever bring any of the people responsible to trial. As Ben Wizner of the ACLU said:

To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.

From the New York Times:

As a senator and candidate for the White House, President Obama had criticized the Bush administration’s frequent use of the state-secrets privilege. In February 2009, when his weeks-old administration reaffirmed the Bush administration's view on the case, civil libertarian groups that had supported his campaign expressed shock and dismay.

Overall, the Obama administration has been thoroughly dedicated to covering up the previous regime's blatant and criminal abuse of human rights. Given what they've been getting up to themselves, this isn't very surprising. The Bush administration inaugurated a policy under which the US government can order the assassination of any American citizen suspected of being a terrorist, due process and the judiciary be damned. In another article by Glenn Greenwald, he goes through how this works, and the fact that while for Bush, this was in the realm of theory, recently the Obama administration has placed a US citizen on the CIA's "hit list". More from the LA Times here. From that article:

"If an American is stupid enough to make cause with terrorists abroad, to frequent their camps and take part in their plans, he or she can't expect their citizenship to work as a magic shield," said another U.S. official. "If you join the enemy, you join your fate to his."

And, of course, the people who determine whether an American has "joined the enemy" are the CIA. There is no judicial process, and practically no oversight. If the Agency decides an American citizen is "deemed to be a continuing threat to U.S. persons or interests", they end up on the hit list.

**

There's the Obama administration for you. In my mind, one of the big questions is whether Americans will recognize that whatever you may think of the man, most of Obama's presidential campaign was built on a huge lie. All that talk about change was simply a smokescreen to get naïve people to vote for him.

This is most obvious in the realm of foreign and security policy, where Obama is succesfully combining pandering to voters with a "withdrawal" from Iraq with the continuation and intensification of some of the most abhorrent practices of the Bush administration's secret war on terror. In my opinion, Obama has jeopardized the entire US achievement in Iraq and Afghanistan, such as it is, with his arbitrary withdrawal dates, which will most likely end in disaster. As I said last year, I fully expect that once US troops actually withdraw from Iraq, the new Iraqi regime will have a life expectancy similar to South Vietnam.

What the fixed withdrawal dates effectively do is make the anti-US insurgency's work very simple. Maintain a low level of operations while preparing to take over the minute the Americans leave. And in Iraq, if that doesn't work, maybe Iran will invade and finally put an end to the long Iraq-Iran conflict.

It's probably for this reason that Obama's touted "withdrawal" from Iraq leaves 50,000 troops and eight Marine bases in the country. Sure, they're there in an "advisory capacity", which is the old Cold War way of saying "we have combat troops in this country, but we're not admitting it". So it's very much a notional withdrawal, because Obama probably knows fully well that he can't actually withdraw American forces from Iraq.

So really, there are two policy choices in Iraq, as well as in Afghanistan: a notional "withdrawal" that actually leaves a large enough American presence to deter both the domestic insurgency and neighboring countries, and so isn't a withdrawal at all, or abandoning both countries to the Islamists. The Bush administration was roundly, and in my mind quite rightly, reviled for embroiling America in a war in Iraq without any kind of real strategy for winning. In doing so, President Bush discarded the main strategic lessons America had learned from Vietnam, with the unsurprising result of creating a new Vietnam in the Middle East. As it stands, the Obama administration is following their lead with their total failure to create any kind of strategy for winning the war. As Obama stages his mock withdrawals and the CIA's hit lists lengthen, Pakistan is descending into anarchy.

In order to bring about any kind of satisfactory, peaceful solution to Iraq and Afghanistan, the United States would need a rarity: a president who's willing to create and implement a strong foreign and security policy. We know Obama isn't that president, so the onus is on the Republicans to come up with a candidate who is capable of resolving the situation before another four years of Obama see the collapse of Iraq, Afghanistan and Pakistan, or the continuation of six-figure US troop strengths in the Middle East for the foreseeable future. Neither option is good for America, or indeed for any of the countries involved.