Let’s be clear: this regulation won’t work. It won’t work because there’s no viable enforcement mechanism, which you kind of need in order to enforce municipal regulations.² It won’t work because it’s a local regulation in an industry which is, to an extent, notoriously mobile. (Even were this regulation federal – numerous porn producers already book time in the tropics and shoot multiple features in a row there. There is no reason this practice would not continue and/or expand.) And it won’t work because the performers – both male and female – mostly don’t want to use them, because pornographic sex takes a lot longer than regular sex and, to put it bluntly, there are chafing issues when condoms are used.

But the spirit of the regulation, at least, is welcome. I don’t believe there’s another economic sector that is as large and as under-regulated as porn is, which is the product of a public that is not willing to admit they mostly use porn regularly and equally not willing to stop using it. The result is an industry whose exploitation of young just-off-the-bus girls has become a well-known joke, where worker protection is essentially nonexistent and where HIV flareups are, sadly, not uncommon.³ We should demand a healthier, safer work environment for pornographic actors, because all it will do is make the industry better. (People who worry about whether better treatment of women within the industry could result in less wild porn should consider that some of the raunchiest and craziest pornographers working today are women. I won’t link here, but Google “Burning Angel” or “Ovidie” or even Nina Hartley.)

Plus, as a bonus for pornographers, regulation carries with it official recognition as well, and in an industry where copyright violation has become so endemic that numerous films are produced simply as loss-leaders to get additional longterm money from the shrinking portion of the porn audience that is still willing to pay money for it, official recognition is worth quite a bit.

1. Memo to all writers everywhere: when you use “bratwurst” as a euphemism for “penis,” you’re writing subpar Krusty the Klown material. CUCAMONGA!
2. Presumably police will not be accidentally wandering on to porn sets on a regular basis.
3. Many porn companies will talk about their rigorous testing schedules, but the day I trust self-regulation is the day I join the GOP and start ranting about immigunts takin der jerbs.

Now, one might…one just might…point out that we’ve been cutting taxes on the rich for the last decade and all we’ve gotten to show for it is a net loss of five million jobs and a small group of very rich people who have gotten much, much richer…but instead, I think we should take all these people at their word. I think that we should treat these people as the job creators they really are, just like the Republicans in Congress say. And to that end, I think we should do exactly what the Republicans insist is the best solution for the economy, the best solution for just about anything. Let’s let the free market handle it.

Specifically, I think we should tie the top income tax rate to the unemployment rate. Say, a baseline tax rate of twenty-five percent, with a baseline unemployment rate of five percent. Every percentage point below that, the top tax rate decreases by thirteen percent (down to a minimum of one percent, a purely token rate.) And of course, every percentage point the unemployment rate goes up above five, the top tax rate increases by thirteen percent (up to a maximum of ninety-nine percent; after all, nobody should be denied the right to make a living.)

Naturally, the specific numbers could be haggled a bit, the tax loopholes closed here and there to make sure that they’re not shirking their duties as job creators, the exact unemployment figures that we use to calculate this tax rate precisely detailed to avoid fraud. But in theory, this should be exactly what the nation’s captains of industry want. They have an incentive to put the nation’s unemployed back to work, we have a way to balance the budget in times of economic stress, and the Republicans get to put their money where their mouth is when it comes to free-market economics and their worship of America’s ultra-wealthy as the people who make America great.

I don’t know why, but something tells me they won’t go for it…

Something for the “give me something to write about” list: the legal ramifications of copyright and 3D printers?

The thing about 3D printers is that they directly challenge one of the assumptions upon which copyright law is predicated.

See, right now, in most countries you can’t copyright the design of a utilitarian item. Say I am IKEA and I design a chair. That chair can’t be copyrighted: it’s utilitarian. The point of the chair is to make many more chairs just like it for common use: the idea of the chair is not copyrightable. (The building instructions, on the other hand, can be. Which is a minor reason IKEA does things the way that they do.) However. Say I am not IKEA, but instead I am a humble woodworker. And say I design a chair, but I design it as a work of art: the back of the chair is a gorgeous woodcarving of Jesus and Muhammad Ali fighting aliens. Now it’s not just a simple chair: it’s a personal expression. Therefore, it now attracts copyright.

That’s how the law works for chairs – and other utilitarian items – right now. If you mass-produce it, it’s not copyrightable; it’s utilitarian. (You may be able to patent it, of course, but that’s a different kettle of intellectual property-fish.) But when 3D printing enters the scene, that turns this entire legal scheme on its ear, because 3D printing will eventually render everything mass-producible. I carve my Jesus/Ali/Aliens chair, and then somebody else 3D scans it and suddenly you can torrent the .cad file to make my chair in a 3D printer from half a dozen places on the net.

So what happens at this point? Have I lost copyright in my chair because it’s been mass-produced and therefore my chair has become utilitarian and a piece of non-singular design? Or have the people downloading the file and reproducing my chair in iChair 2015 infringed my copyright in the chair? The answer at this point is “ask again later” because I sure as hell don’t know: thanks to technology we’re once again approaching a problem that copyright systems never anticipated coming. Will iChair’s additional features allowing the user to make sure that design features of customized chairs don’t keep the chair from being used for its traditional “sitting in it” purpose strengthen the utilitarian argument? What if iChair lets you design chairs from scratch and autocorrects you to make sure the chair is viable and won’t fall apart, which essentially means that with enough market penetration no original design will be non-duplicable even without people copying it? (This is the “sooner or later someone else will make a Jesus/Ali/Aliens chair” argument.) Does mass production therefore destroy whatever copyright exists in industrial design, or does it mean that legislatures and/or judiciaries will find new sources of copyright that do not as yet exist?

Like I said: I don’t know. But suspecting that the answer will benefit whoever stands to massively profit from the new industrial design landscape when 3D printing comes around will probably not be entirely inaccurate.

We don’t take on criminal or immigration matters at present, and specialize in family and employment law issues, but we’ll take most civil matters under consideration. (I am personally hoping for some intellectual property law actions to show up sooner or later.)

But what really irked me at the time was Marvel’s claim that this was a more “realistic” look at how super-heroes would operate in the real world. In the real world, they said, super-heroes would be regulated and controlled. In the real world, there would be an authority governing them. In the real world, things would look like they did in “Civil War”.

Suuuuuure they would. That press conference where Tony Stark announced the Registration Act, and revealed his secret identity to wild applause from the crowd of reporters? Would have gone something like this.

“I’ve revealed my secret identity before, but always in ways I could go back on. This time, there’s no going back. I’m Tony Stark, and I’m Iron Man.”

“Mister Stark…didn’t you just say a few weeks ago that you were retiring from being Iron Man after the stress of your dual identity caused you to get drunk and publicly threaten to kill the Latverian Ambassador?”

“Um, yes, but that was evil magic, not alcoholism that–”

“Have you always been Iron Man? What about the time you claimed you ‘fired’ Iron Man for attacking government agents and murdering a Russian super-hero? Was that a lie too?”

“I think I should wait to speak to my lawyer about–”

“You don’t actually have any super-powers, Mister Stark, yet you’re claiming that the new Super-Hero Registration Act requires you to register because of your possession of the Iron Man armor. What happens if you decide to license or sell the armor? Does the new owner instantly become a law-breaker?”

“Well, these are questions that will be answered by the courts when–”

“As we understand it, you attempted to arrest Captain America for failing to register under the Act before it was even enacted into law. Isn’t that a blatant abuse of your new-found power?”

“This press conference is over.”

Soon, Iron Man would be forced to resign, the law would be tied up in the courts for years before being declared unconstitutional, and the Negative Zone prison would wind up being an expensive and unworkable boondoggle due to the use of shoddy and substandard contractors. Then Blaastar shows up at the United Nations, asking them to condemn America’s invasion of his sovereign territory…

Granted, it’s probably a moot point until Obama’s possible second term (Kennedy will be 77 by the end of it). But if I wanted to convince the Supreme Court’s “swing vote” to retire, that is how I would do it.

As for Kagan, the lefties proclaiming her “Obama’s Harriet Miers”¹ are all on crack. Miers was an undistinguished family lawyer. Kagan is a former Harvard Law School dean. There’s kind of a difference. You can complain, perhaps, that Kagan hasn’t written a lot of articles, but so what? She’s clearly intelligent and frankly people arguing that she’s a stealth conservative are on even crackier crack than the “Obama’s Miers” crowd because people who are stealth conservatives don’t spend their lives working in liberal law schools and for Democratic presidents.

In short: she’ll be fine. Not a daring or exciting pick, but a solid one.

1. And why is everything in this administration “Obama’s X,” where X is something that happened to Bush? Bush was a disaster, Obama isn’t. NOT THE SAME THING.

So, in order:

1.) Corporations were already mostly free to engage in political speech anyway, thanks to Wisconsin v. RTL a few years ago, which said they had the right to engage in “issue” advertising. In other words, a corporation running an ad saying “vote for Senator Floozits” would be prohibited, but running an ad saying “Do you want to lose your job because of spotted owls? Tell Senator Floozits you don’t want to lose your job because of some vote on environmental regulation!” would be more or less kosher. The dividing line here is obviously a very fine one, and for the purposes of influencing an election it’s largely meaningless.

2.) After President Obama gave his State of the Union speech saying that foreign-owned corporations could now influence elections, a bunch of conservative organizations and the New York Times jumped up to play fact-checker, saying that parts of the U.S.C. said that foreign corporations weren’t allowed to buy electoral advertisements. First off, this is only a technicality; a domestically-owned subsidiary of a foreign corporation with a majority of foreign-born board members (or even simply license requirements allowing them to be influenced) can get past that restriction quite easily. But that’s before you get into shell corporations. (After Citizens dropped, I asked a friend of mine who’s big into business law how many ways he could think of to get around the foreign ownership restriction. He thought about it for a minute and then said he could think of six.)

3.) Some people have suggested that this decision is a victory for smaller corporations to enter into political dialogue, or that individual citizens can now form corporations for the purposes of generating political speech. These are both extremely stupid arguments. Smaller corporations by and large can’t afford to influence political dialogue on any meaningful level that wasn’t available to the individuals participating in them already, and individual citizens already had the opportunity to form advocacy groups (and have done so with some impressive successes).

4.) And yes, of course I think it’s a bad decision – mostly because I’m very much in favour of greater restrictions on corporate rights rather than less, because they are imaginary people, and imaginary people do not, as a rule, have moral character which informs their action. People complaining that campaign finance reform failed to stop corporate speech miss the point: ideally elections should be solely publicly funded. You sign up for your campaign, you get X dollars and a paid half-hour of media time somewhere to make your case for electability. Of course this will never happen, but so will lots of other things that are great, like McDonald’s bringing back the Shamrock Shake on a permanent basis. Why doesn’t the Supreme Court make a decision saying McDonald’s has to bring back the Shamrock Shake forever? And also the McRib.

5.) Additional commentary on the decision that I recommend can be found here.

I understand police wanting to cut down on prostitution; in a system where it’s not legal, it’s generally unsafe, and you want to disincentivize unsafe behaviour. (Of course, legalizing it would be simpler and safer all around, but God would get angry at you if you do that, apparently, so that’s off the table.) But there’s simply no way to characterize this method of action as anything other than incredibly cruel: jumping up the charge for prostitution from misdemeanour to felony alone has any number of horrible legal ramifications for those charged, and that’s before you get into the (often expensive) complications of being a registered sex offender, a classification invented to deal with the dangers posed by pedophiles and rapists rather than poor women who had to suck somebody’s dick so they could pay their rent.

And on top of that, there’s this abomination:

“The way Louisiana’s habitual offender law works, if you challenge your sentence in court and lose, and it’s a third offense, the mandatory minimum is 20 years. The maximum is life,” he explained.

So on top of the horrible abuse of law to make life worse for people who apparently didn’t have it bad enough already, let’s make it essentially impossible for them to challenge their unjust sentence. Way to go, Louisiana.

Hola, amigos! It is once again that time of the week where I, El Tyrano Magnifico, the greatest of all luchador lawyers, will read and examine your pleas and questions with the detail demanded of a true champion. Much as the time I fought El Hijo del Santo in a Five-Way Mexican Dance of Death, remembering each of his three primary weaknesses and planning my attack, so shall I carefully consider each of your questions. That is the eternal pledge of El Tyrano Magnifico!

Jaime Muniz, who it says in the letter is nine years old, writes to ask:

Dear El Tyrano Magnifico: I was wrestling at school and one of my classmates had me in a rattlesnake leglock. I was slapping the ground to give myself the will and the strength to reach the bottom rope, but the referee said that I had tapped out and thus lost the match, even when I had clearly not submitted! Is this not improper?

Dear Jaime: Sadly, you have no recourse. Ever since Shamrock v. Hart was dismissed for appeal in 1998, it has been a matter of settled international law that slapping a mat, floor, ground, or any other horizontal surface qualifies as a submission, even if the words “I give up” are not uttered. In future, you may wish to consider slapping a wall or human face instead in order to deal with the grueling pain of a rattlesnake leglock. If these are not available, consider filing an injunction with your local judge.

Now, Arina Ortega writes:

Dear El Tyrano Magnifico: My papa works very long hours at the butcher’s, but lately he complains that he is not getting paid for the extra hours he must work. Surely there is some recourse for us? I am very hungry and would like to eat something other than pinto beans, which give me abdominal pressures.

Dear Arina: Your papa is deserving of overtime, but if he has signed a contract forced upon him by the rudo butcher shop manager, he may have unfortunately ceded his right to overtime payment. But all is not lost! If your papa – or a designated counsel working on his behalf – can force the butcher shop manager into a sleeper hold, when the manager passes out from lack of blood to the brain, he will be deemed to have agreed to a rewriting of the terms of the contract! For maximum legal security, I recommend putting the butcher shop manager in a sleeper hold while he is in a police station, local notary’s office or steel cage.

Also, dear Arina, you may qualify for pro bono legal representation by El Tyrano Magnifico, or perhaps by one of the Tyranitos, my assistants here at the firm of Magnifico, Gomez and El Terror. Contact me immediately and we shall set up an appointment! Now who is the next letter from…?

Dear El Tyrano Magnifico: Fool! While you address the questions of simpering children in your pathetic mailbag, I have stolen your precious Legal Society Championship Belt! I wear it now and it glistens around my midsection! HA HA HA! Do you hear my laughter, El Tyrano Magnifico? I laugh at your respect for law and order! HA HA HA! Your gleaming belt is nothing more than a trophy of my success!

Sincerely, Vampiro Ultimate X

My fists quake with rage! Damn your eyes, Vampiro Ultimate X! Your misdeeds have gone unpunished for far too long, even as you have exceeded the villainy of Vampiro Ultimate IX and Vampiro Ultimate VIII, and indeed all the previous Vampiro Ultimates with the possible exception of IV! And now you steal the Legal Society Championship Belt? Without ever having passed a bar exam? Without ever having had proper schooling? The duty of a luchador lawyer is to serve as counsel to the utmost degree, Vampiro Ultimate X, and that is something you cannot understand for you do not know the secret martial paths of the courtroom!

This time is for me to read mail from all my little amigos who seek legal knowledge, Vampiro Ultimate X, and you have trespassed upon sacred ground, at least metaphorically! For this there can be no forgiveness! I challenge you to a barbed wire match, Vampiro Ultimate X! In the deadly tangle of barbed wire, I shall call forth many witnesses, who will testify as to your inadequacy when I place you in my patented¹ Hyper Dragon Armbar! You will cry for mercy, Vampiro Ultimate X, but no mercy will be forthcoming so long as no one believes you are reasonably deserving of mercy! That is the promise of El Tyrano Magnifico!

1. Patent filed 1989, patent no. 89326-032.

“[Judges] created corporations as persons, gave birth to corporations as persons… There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

That is huge. Applying individual rights to corporate entities is a legal standard that’s been the norm for almost as long as the modern western world has had them; that a judge would challenge this at a Supreme Court level, even in oral argument, is massive. There’s no other way to describe it.

Sonia Sotomayor might well be the dreaded uberliberal the Republicans were terrified of.

The answer is: maybe.

There are certainly circumstances where deception can be an element of rape. As someone at scans_daily points out, “Heck in my 1L Criminal Law casebook there was a case where a doctor tricked a patient into having sex with him as part of her treatment. The courts found that it was indeed rape.”

However, the common element in cases where deception is an element of rape is that the deception in and of itself can impair the ability to consent. Most criminal law jurisdictions operating under the common law have a “doctor tricks patient into sex for medical reasons” case, because every jurisdiction has a few asshole doctors. But the reason that deception was considered rape was because convincing someone that having sex with you is necessary for the sake of your health or indeed your life makes it essentially impossible to refuse; it’s the verbal equivalent of a knife to the throat.

On the other end of the spectrum, most legal jurisdictions have considered anti-pickup-artist legislation designed to criminalize lying to women for the purposes of getting laid, and so far as I know nobody’s ever gotten past the consideration stage for one simple reason: it’s an incredibly paternalistic idea, and as a law essentially proposes that women can’t be considered able to tell truth from fiction. That’s an incredibly dangerous precedent to put into law, and there’s no real way to put together anti-pickup-artist legislation without that precedent that I (or most people) can see.

So, the most likely rule for the forseeable future in most jurisdictions is that lying to get laid isn’t going to be rape unless it can reasonably vitiate someone’s ability to consent. Not merely trick someone into consenting (which, while loathsome, is legal): it has to essentially remove their ability to consent altogether. Under this standard, can what the Chameleon did be considered rape?

And again, the answer is: maybe. If you tried this, it would depend on whether you got a judge who treated what the Chameleon did as a more advanced, evolved form of pickup line, or one who went with the idea that shapechanging into someone Michelle had already slept with removed her ability to reasonably consent to sex. It’s a very fine line, primarily because regardless of Dmitri having imitated Peter, I don’t think you can fairly say that Michelle would have necessarily slept with Peter (and to be honest, if it had actually been Peter in that situation, I seriously doubt he would have taken the actions the Chameleon did that led to the sex).

On the other hand, of course, you can phrase it like this: “would Michelle have slept with the Chameleon if she’d known it was him rather than Peter?” The answer here is of course “probably not,” but you can’t just say “well, she’d never sleep with the Chameleon because he is a bad dude.” Presumably the Chameleon would not say up front “by the way, I’m a super-villain,” or make it obvious to her that he was such (IE, by wearing his creepy white mask). Plenty of criminals “forget” to mention their records and/or lifestyle when they sleep with people, and we’re not going to reasonably call that rape. How about asking if the Chameleon – disguised as somebody else Michelle did not know – met her in a bar, what if she slept with him then? We wouldn’t call that rape at all.

But then again, hypotheticals like that get away from the core of the problem, which is that in this specific situation, Michelle would presumably not have been willing to sleep with anybody other than Peter (IE, in the apartment at that time and place), and that although sleeping with Peter wasn’t a guaranteed outcome it was still a possible one whereas for any other person it was probably impossible.

I could go back and forth all day on this, so here’s my bottom line. It was skeevy and gross, to be sure, and it probably shouldn’t have been in the comic given its general tastelessness. But given that I don’t think you can prove that Dmitri vitiated Michelle’s ability to consent, I don’t think you can call it rape.

UPDATE: David from Shifting Spanner mails:

I’ve only gone to this effort because I knew it wasn’t the law in Australia, and was pretty damn sure it wasn’t the law in the States or Canada (but don’t have the database access for enough case law in either).

The mistaken identity scenario is specifically mentioned as vitiating consent in (just as examples) the Crimes Act 1958 (VIC) s.36 and the Crimes Act 1900 (NSW) s.61HA(5)(a). I’m a bit baffled as to why the Canadian Criminal Code doesn’t mention it under any of the definitions of consent, although it is a statute sufficiently prudish to define sexual intercourse as involving “penetration to even the slightest degree, notwithstanding that seed is not emitted”. To be fair, it’s not specifically mentioned in the NY Penal Code, either.

So I think the answer on Smerdyakov has to be guilty. This wasn’t a pick-up artist situation where he lied only about what sort of person he was or what his name was. Smerdyakov deceived Michelle in a way that said ‘You know who I am’. It’s a fundamentally different deceit to ‘I know you don’t know me, but I invented foot massages and I’m awesome in the sack’.

This is interesting because Australia is the only major common-law jurisdiction that I’m not that familiar with. Now, I obviously argue from a Canadian context. Our Criminal Code‘s relevant provision states that consent is vitiated when ““the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority“. There’s no explicit provision for mistaken identity.

In a Canadian context, the question then turns to whether Smerdyakov’s imitiation of Peter counts as “one of trust,” and although Smerdyakov’s act was morally repugnant, I still don’t think it would qualify because I think claiming Peter’s position vis-a-vis Michelle as “one of trust” just doesn’t fly: at the time of the deed,
Peter and Michelle had been roommates for, what – less than a month? Had sex together once while drunk? That’s clearly not intended under the statute. Granted, if a judge was offended enough by Smerdyakov’s act they could easily stretch the definition and create a precedent.

However, that mention of Ben Reilly intrigues me, because up until now I’d been working under the stupid assumption that Smerdyakov’s superpowers weren’t real-world duplicable, but of course they are: an identical twin can assume his twin’s identity for the purposes of sexual deceit. So I’ve started looking into whether an identical twin has ever been accused/convicted of sexual assault in this context, because… well, because it’s interesting, really.

UPDATE 2: In the sort of timeliness that makes you wonder if someone is making a movie about your life, a twin-posing-as-other-twin-for-sex who was then arrested for rape? Just a couple weeks ago. I shall keep an eye on this case to see how it develops.