By Any Other Name, It Would Taste as Sweet

It’s almost amusing.  Actually, it is amusing.  If Larry Page and Sergey Brin had not decided in 1997 to rename their now-famous search engine at Stanford University, it is entirely possible that much of our dialogue about the Internet would be filled with strange innuendo.  Imagine a friend is curious about some topic or other.  But for that change in name, you might be telling him, “Oh, I don’t know.  Just backrub it.” 

Which name is the better one, Google or Backrub?  “Backrub” was descriptive in a way.  The innovation of the search engine that we now call Google was that it ranked the importance of search results according to the number of backlinks that a web page had.  It was a different approach than most other search engines at the time used. 

We are probably no worse off today because of the name change.  Indeed we are probably better off, with Google being considered by some to be one of the best company names.  It takes only a quick backrub of the Internet — perhaps that does not sound so awful after all — to come up with many companies who have changed their names to avoid negative connotations with their name.  Yahoo! is surely much better than the far-too-parochial Jerry’s Guide to the World Wide Web.  And people are still not entirely sure whether KFC adopted that name in 1999 to avoid connections with “Kentucky” (the state by that name trademarked its name and introduced substantial licensing fees), “Fried” (the company did not want its food products to seem totally unhealthy), or “Chicken” (government regulators were pressuring the company about its livestock practices). 

But when does renaming something cross the line into becoming deceptive?  In the last several years, high fructose corn syrup has been increasingly disparaged.  It is found in many processed foods, most notably in soft drinks but also in soups, lunch meats, breads, cereals, condiments, and may others.  It has been blamed for the high levels of obesity in the United States and as a contributor to a number of health issues.

The name “high fructose corn syrup” is essentially an accurate description.  Derived from corn, this sweetener comes in a number of different varieties, all of which have a mixture of fructose and glucose.  The most widely used variety, HFCS 55 has about 55% fructose and 42% glucose as compared with about equal amounts of fructose and glucose in sucrose (sugar).  Critics point to the different metabolic pathways of fructose and glucose in the body, namely that fructose consumption does not result in the body’s production of leptin, which is an important substance in signalling the brain to stop sending hunger signals.  It is fair to say, though, that there is a lack of consensus on the full impact of sucrose versus high fructose corn syrup consumption. 

The Corn Refiners Association takes the view that both high fructose corn syrup and sucrose have “similar” glucose-to-fructose ratios, and that those ratios are similar to the ratios found in natural fruits and vegetables.  Responding to advice from many quarters to reduce consumption of high fructose corn syrup, the Association petitioned the Food and Drug Administration (“FDA”) in September to change the name.  “Corn sugar” is the name they prefer and believe it remains free of an unjustified stigma.  Their views can be be found here

There can be no doubt that in petitioning for a name change the corn industry is responding to criticisms about consumption levels of high fructose corn syrup.  What is really at issue is whether changing the name is intended to be helpful in giving the public accurate information or is intended to be deceptive. 

One name change that the Association points to in making its case to the FDA is the FDA’s approval in 2000 to rename prunes as “dried plums.”  That action was initiated by the California Prune Board, which asserted that the public associated negative imagery with the name “prunes.”  Indeed, after approval by the FDA, the Board itself was renamed and is now the California Dried Plum Board, still active in promoting the value of prunes, no matter what they call them. 

The comparison that the corn industry wishes to make strikes me as a weak one, though.  While the word “prune” does sound decidedly less palatable than “dried plum,” allegations of unhealthiness of the product were not part of the motivation for seeking a name change.  And the purchase of prunes is made in a very different way than the purchase of high fructose corn syrup.  Someone purchasing prunes knows exactly what they are buying, but no one really goes to the grocery store to pick up some high fructose corn syrup — it’s just there, so ubiquitously present that those who wish to avoid consuming it need to expend some fair effort in finding products that do not contain it. 

Consumers deserve to know what they are buying and deserve to have useful information so they can decide for themselves what they wish to consume.  This is true even if the scientific research about the health effects of products is unclear.  It is even true if people are being irrational about what they choose to consume.  It is, after all, their bodies and their responsibility to inform themselves about the health effects of what they eat.  The precise contours of the corn industry’s motivation in seeking a name change thus need to be an essential part of the FDA’s deliberations. 

It will be some time before the FDA reaches a decision.  In the meantime, documents filed in connection with the petition, including comments from the public, can be found here.  It is worth emphasizing the importance of these public comments, which very often have a real impact on the decisions reached by government agencies.

The Right Most Valued

As you prepare to head off on vacation, you run through the list you have diligently prepared to make sure you haven’t forgotten anything.  Clothes for all kinds of weather, something nice to wear when you find a good restaurant, toiletries, and so on.  You check that the water is turned off, that you have left detailed notes for the petsitter, that your mobile phone is charged.  And, these days, you check for compliance with security restrictions:  that you haven’t accidentally put your eyedrops in your carryon bag, that all your liquids are in tiny bottles, that they are neatly packed in a quart-sized bag. 

At the airport, things do not go quite as well as you expect.  You’re standing in the security line, watching your shoes, your jacket, your sweater, your jewellery going through the x-ray scanner as men acting under the authority of the government scan you with detectors, examine your identification, look for telltale signs of nervousness.  Perhaps they even profile you based on the clothing you wear, the shade of your skin, and your age, even though they never admit it. 

One of them comes over to you as you move to retrieve your things from the plastic bins.  He asks you, “Are these your items?”  You’re uncertain why he’s asking but you acknowledge that they are.  “Do you have anything in your bag that you’re not supposed to,” he asks.  You say you don’t, but why is he asking?  He holds up a vial containing white powder.  “Did this come out of your bag?”  You can feel your palms turn sweaty and a lump forms in your throat.  Your voice cracks a bit when you say no, making you worry that it’s all going to make him more suspicious.  His face is serious, accusing.  “Are you sure?” 

It is only after he has frightened you that he confesses it’s just a joke. 

Too funny. 

What I have described is not fantasy.  In January of this year, an employee of the Transportation Security Administration engaged in this prank multiple times with passengers he knew were innocent.  My objective in highlighting the story is not to blow it out of proportion — people do engage in pranks, some of which are inappropriate, and they properly acknowledge that their judgment was poor when they consider things more soberly.  Instead, my objective is to remind us that the employees charged with implementing security at airports are human and the risk that they will act maliciously is not simply hypothetical. 

This is of real concern as the government continues to deploy full-body scanners at airports as part of its security procedures.  The scanners are technological marvels and it’s hard not to remember Arnold Schwarzenegger being scanned by something eerily similar in the movie Total Recall.  Innocent people simply wanting to travel from one location to another — and without the government having any specific reason to suspect them of wrongdoing — are now expected to allow themselves to be scanned in a way that generates images of their naked bodies through their clothes.  Reassurances that privacy protections are in place — by having the viewing officer remote from the scanner, by including imaging techniques that blur facial features, and by implementing a policy requiring deletion of the images — do not really strike at the heart of the privacy concerns.  Even with these protections in place, extremely personal details of people’s bodies are displayed to government agents: colostomy appliances, penile implants, evidence of mastectomy or testectomy, and more. 

Already it is known that many images have been saved, contrary to the policy.  At least one federal security screener in Miami has already been arrested in a conflict that arose when a coworker mocked images of his naked body generated by one of the scanners.  That story can be read here.  A security worker at Heathrow airport was subject to discipline when he made lewd comments about a coworker who was accidentally imaged by a scanner.  That story can be read here.  

The deployment of full-body scanners has been challenged in litigation that raises a number of arguments in asserting that they are unlawful.  First, the lawsuit alleges that the scanners violate the Fourth Amendment’s guarantee that people have the right “to be secure in their persons … against unreasonable searches and seizures.”  It is well-settled that airport security by itself is not an “unreasonable” search that violates the Fourth Amendment.  But there is a significant difference between having passengers walk through magnetometers to detect metal before subjecting them to a more thorough search and requiring that every passenger have their unclothed body imaged.  To be constitutional, airport searches must be “minimally intrusive,” “well tailored to protect personal privacy,” and “neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.”  Do full-body scanners meet these criteria? 

Perhaps most interesting about the lawsuit, though, is its allegation that the program violates the Religious Freedom Restoration Act.  This act prohibits the government from burdening the exercise of a person’s religion, even from generally applicable rules.  Many religions make physical modesty a part of their doctrine and rules that force all aircraft travelers to violate their beliefs regarding modesty may well violate the statute. 

Airport security has a legitimate role and almost no one maintains that full-body scanners do not have a reasonable place in that security.  What is objectionable is the uniform use of such a personally intrusive scanning technology on people who have raised no suspicion that they have any intention other than wanting to board a plane so they can travel from one place to another.  Programs that make use of the scanners only when some suspicion exists — after detection of metal by a magnetometer, suspicious behavior, unusual ticket-purchasing patterns, and so on — would generate far less objection among travelers. 

Benjamin Franklin has been quoted so frequently since the grim events of September 11, 2001 that to quote him again seems almost trite.  But there is nevertheless truth in his warning, which rings especially cleanly in the way it reminds us that the issues we face today are really no different in kind from those faced by contemporaries of the framers of the Constitution:  “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”  If our own bodies do not define an essential liberty … then what does?

The $62,500 Question

Hammurabi was a ruler of ancient Babylon who perhaps had many achievements, but the one that we remember most is his code of laws.  A black stone monument on which the Code of Hammurabi was inscribed was found in the Persian mountains in 1901 and is currently housed at the Louvre in Paris.  At the time, the concept of the Code was revolutionary:  proclaim publicly what the laws are ahead of time, and publish them so that everyone might see them and know what behavior is expected. 

The Code of Hammurabi is also famous for embracing the principle of lex talonis, setting the punishment for putting out the eye of an equal to be having ones own eye put out and setting the punishment for knocking out the teeth of another man to be having ones own teeth knocked out.  The principle of an “eye for an eye and a tooth for a tooth” later found its way in some form into almost every judicial text, including such religious texts as the Old Testament book of Exodus and the Quran as well as in secular legal systems in such civilizations as Rome.  The concept still exists today in that punishments are generally expected to “fit the crime.” 

So how do we explain last week’s verdict assessing damages against Jammie Thomas-Rasset of $1.5 million for illegally downloading 24 songs from the Kazaa web site sometime in 2007 and violating the copyright of those who owned the songs?  After all, the cost of all 24 songs on legal sites is probably in the ballpark of a measly $50.  She is ordered to pay an average of $62,500 each for songs that most of us pay only a dollar or two for. 

The fact is that advances in technology have very much changed the way in which all forms of artistic expression are sold.  The sale of music was perhaps the first, with albums of music almost being a thing of the past in the reality of how music is sold.  But the increasing publication of electronic books and the new mechanisms for distributing video content will likely see copyright holders trying to extend the principles being laid down now in the music industry. 

Many see little harm in lifting a song here or a video there, and it is this view that is at the heart of the damages award in the Thomas-Rasset case.  In most cases, the damages that are assessed in civil cases are equal to the actual amount that a person lost as a result of the wrongful action.  In the case of downloading songs in violation of a copyright, such actual damages would be small and this concerned Congress when it was considering so-called “statutory damages” for copyright infringement.  Statutory damages may be assessed no matter what the actual value of the loss resulting from the infringement.  As Congress explained in its deliberations over the Digital Theft Deterrence and Copyright Damages Improvement Act in 1999, 

Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct.  Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. 

So the level of statutory damages was set at a level designed to get people’s attention:  between $750 and $30,000 (per work) when the infringement is non-willful and up to $150,000 when the infringement is willful.  They appear to have succeeded; the verdict in the Thomas-Rasset case has people’s attention. 

The case is also interesting because of its history.  The RIAA has maintained that it has been willing to settle the case for $5000, an amount that Thomas-Rasset finds unreasonable.  But in the first trial in 2007, she was found to have willfully violated the copyrights and was ordered to pay $222,000 — $9250 per song.  But the judge ordered a new trial because of an error in giving jury instructions, resulting that time in an order to pay $1.92 million — $80,000 per song — an amount that the judge described as “monstrous and shocking.”  At the time, he reduced the total award to $54,000, but a third trial resulted when the RIAA rejected the reduced amount. 

Is the award excessive?  It seems to be, but I was not on the jury and did not hear all the facts; all I really know about the case is what I have read in the newspapers and in the public briefs for the case.  What I do know is that as technology continues to advance and as books and videos are increasingly made available electronically, it is important to be aware that copyright-infringement issues are not theoretical.  Organizations that represent writers, artists, and composers see these technological advancements as a threat to the livelihoods of their members and actively work to ensure that penalties will be meaningful.

I Know It When I See It

It is easy to imagine the scene.  Les Amants was French director Louis Malle’s third film and had been tremendously popular in France and other European countries.  Many considered the film to be what established him as a serious talent.  So when the film was shown in the Coventry Village district of Cleveland Heights in Ohio in 1959, it probably attracted those people in the community who had an interest in seeing the works of foreign talents.  One can imagine men and women lining up at the Heights Art Theatre in this bohemian part of Ohio, perhaps pulling their coats tight around them on the cool autumn evening as they waited.  Surely the film was not as popular in sleepy Ohio as in the more cosmopolitan American cities of New York or San Francisco, but every part of the country has an element interested in such things.  Most waiting to view the film probably considered themselves to be reasonably sophisticated and looking forward to debates over late-night coffee about the merits and failings of Malle’s vision. 

There was just one problem.  The local government considered the film — which recounts the story of an unhappy upper-class woman who spurns both her husband and her lover for the uncertain excitement promised by a passing stranger — obscene.  The manager of the theater, Nico Jacobellis, was fined a total of $2500 for violating Ohio law by possessing and exhibiting an obscene film.  It is likely that few today would be in any way shocked by the film’s content, but it was Jacobellis’s conviction that resulted in Justice Potter Stewart’s famous proclamation about obscenity that “I know it when I see it, and the motion picture involved in this case is not it.” 

The contours of the guarantee in the U.S. Bill of Rights that “Congress shall make no law … abridging the freedom of speech” is one that the Supreme Court frequently struggles with.  Yesterday, the Court heard oral arguments in the case of Schwarzenegger v. Entertainment Merchants Assoc.  A transcript of the arguments can be found here

At issue in the case is a California law that prohibits the sale or renting of violent video games to children.  The definition of “violent video game” is reasonably specific in the statute, and this is relevant.  The statute seeks to regulate video games in which children play characters that “inflict serious injury … in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim,” with such terms being further defined to include that the “player relishes the virtual killing or shows indifference to the suffering of the victim.” 

No matter how strongly one feels about the right to free expression, including the right to expression that involves violent images, it is impossible not to recognize the concern of the legislature in wanting to regulate these types of games.  There are numerous studies that have been conducted by social scientists and medical associations that raise specific concerns with video games that go beyond what a viewer of a film or reader of a book experiences.  Books and films provide passive experiences.  But video games allow the child to “become” the character in the game inflicting the violence, and those studies have found a correlation between playing such games that influences the moral development of young people at an age when their senses of morality and sociability are not fully formed.  They have an increase in aggressive thoughts and behavior and become desensitized to violence in both minors and adults. 

This science has been criticized, and those criticisms need to be taken into account in a full exploration of the issues.  But for my purposes today, suppose that the science relied on by the state is accurate.  Does that science then justify this encumbrance on the First Amendment rights to expression?  It is not an easy decision.  As Justice Scalia amusingly noted during yesterday’s argument, the First Amendment does not read “Congress shall make no law abridging the freedom of speech except those that make sense.” 

There are many considerations that the Court needs to make sense of, but two of them stand out in particular.  First, how is the producer of a video game to know whether what is produced is a “deviant violent video game” as opposed to a “normal violent video game”?  Everyone agrees that some level of violence has always been accepted in artistic expression, with examples ranging from Grimm’s fairy tales to the Bible to cartoons being mentioned during the argument.  Such uses can be a powerful part of legitimate messages that are conveyed in artistic creations, and it clearly goes too far to prohibit all violence from any artistic expression, including video games.  It is reasonable to expect producers to know what crosses the line and what does not, particularly when every one of us has a different view as to when a certain level of violence becomes too much.  Justice Scalia incisively mocked the notion that the state should have a mechanism to examine each video game and decide, using language that makes us cringe and shudder:  “You should consider creating such a one.  You might call it the California Office of Censorship.” 

Second, should the law accept a different treatment for sex and violence?  One of the strongest arguments made in favor of California’s law is that it attempts to mirror the standards that have been set forth by the Supreme Court itself in regulating sexual expression.  Obscenity can be regulated in the United States, the Court having set forth a test decades ago to delineate when sexual expression crosses the line into unprotected obscenity.  The only justification the Court seems to offer is that sexual expression has a “historical tradition” of being regulated while violence does not. 

This is a difficult rationalization to accept.  And if anything, it appears to provide a result that many feel is backwards.  If there is scientific evidence that violent video games may hamper a child’s social development and make him less empathetic to the suffering of others, how does it make sense to allow such expression while regulating sexual expression just because one type of suppression is “traditional” and the other is not. 

It is very often the case that things that seemed scandalous years ago seem tame today, particularly when new types of expression are implicated.  Print images caused concerns centuries ago.  Motion pictures caused concerns decades ago.  Video games cause concerns today.  And something else will cause concerns in the future.  Each of these has been identified as being more “real” and therefore more likely to impact the way children develop, prompting calls for the government to intervene.  Anyone watching Les Amants today, with a modern sensibility, is likely to consider it almost prosaic in its themes and portrayals. 

In the end, perhaps Justice Stewart’s observation is even more profound than he intended.  Times change.  Morals change.  Technologies change.  But I still know it when I see it.