A couple of days ago, the Supreme Court ruled in the case of Ashcroft v. Free Speech Coalition, the "Virtual Child Porn" case (Supreme Court Upholds Virtual Child Pornography). Read the decision [PDF]. In general, the decision is a resounding victory for free speech and is surprisingly strong. Most commentators reported it as 6-3 striking down the Child Pornography Prevention Act (CPPA), such as Law.com (U.S. Supreme Court Overturns Ban on 'Virtual' Child Porn) and the LA Times (Ban on 'Virtual' Child Porn Is Upset by Court). The commentators are right. Indeed, some of the language was so strong that it might even affect copyright law, as I discuss below.
However, the decision was also closer than it seemed. It might actually be considered a 5-4 decision, since Justice Thomas, in his concurrence, essentially argued that if imaging technology became sufficiently advanced, a more limited prohibition on virtual child porn might be constitutional. All three dissenters (Chief Justice Rehnquist and Justices O'Connor and Scalia) believed such sophisticated technology was already or nearly here. They agreed that "the rapid pace of advances in computer-graphics technology" made the government's concerns about being unable to prosecute possessors of child pornography reasonable. And it is likely that a revised law will be introduced, as Attorney General Ashcroft has vowed in this Newsbytes article (Ashcroft Calls For New Laws, Resources To Fight Child Porn). Clearly, there will continue to be concern about this issues as technology advances.
As a matter of fact, what happens when technology advances beyond Justice O'Connor's imagination? What is the future of virtual kiddie pr0n?
Ashcroft v. Free Speech Coalition and Copyright
Before I answer that question, however, let's take a quick look at how the majority decision might affect copyright law. Of course, it is important to remember that this is not a copyright case. Traditional jurisprudence would view a copyright analysis of a First Amendment-based decision with suspicion, as a former chairman of the ABA's IP section makes clear (IP Bar Shutdown - No Amicus in Eldred Says ABA Governors).
First, the majority opinion of the Court vehemently attacked the government's contention "that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct." The court emphasized the distinction between words and deeds:
The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it ... The government may not prohibit speech because it increases the chance an unlawful act will be committed at some indefinite future time. [citations and quotes omitted]
One might think that similar reasoning would apply to the Digital Millennium Copyright Act (DMCA), which prohibits anti-circumvention devices that enable protected speech (Fair Use). It is true that there is a more direct connection between an anti-circumvention device used in piracy then the connection between child molester and child pornography. However, there is also a more direct connection in an anti-circumvention device that enables more protected speech (Fair Use). In such cases, shouldn't the government have to meet as great a burden in showing why all anti-circumvention devices be banned? It seems odd that the First Amendment should protect indecent and offensive speech, but not speech that enables more speech, such as criticism and parody.
The more interesting point of this case with regard to copyright law is the strong position the Court sets out with regard to total prohibitions and affirmative defenses. In this section of the opinion, the majority eviscerates the government's argument that since actual and virtual child pornography will soon be indistinguishable, both must be banned:
The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. [citations and quotes omitted, emphasis added]
Seems to me, this is precisely what the DMCA and the proposed CBDTPA (the bill formerly known as SSSCA) do. In order to stamp out unlawful speech (copyright piracy) the government has suppressed lawful speech (Fair Use). Furthermore, the law in question in this case only applied to visual depictions of sexually explicit conduct. It did not apply to texts. It did not apply to music. It did not apply to visual depictions of anything other than sexually explicit conduct. How much greater then should the First Amendment scrutiny be for a law that implicates the entire realm of human expression as the DMCA does?
The next interesting section of the opinion is dicta, which is not officially binding as precedent. This section concerns affirmative defenses:
The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense.
In this case, the affirmative defense necessary was particularly difficult to meet. After all, how easy would it be for someone far along in the distribution chain of a photograph to prove that the actors in the image were adults? Moreover, the Court did not rule on this issue since the affirmative defense in question was "incomplete and insufficient, even on its own terms." What does this mean for copyright? Nothing, it is dicta. However, because Fair Use is an affirmative defense, the implications for two important elements of copyright law are profound.
The elements I refer to are two of the supposedly "exclusive" rights: the rights to make copies and derivative works. You see, if I copy a movie from a DVD to my laptop's hard drive (so that I can conserve battery power during an aircraft flight), I have imposed upon the exclusive right to make copies. If I translate a poem written in Italian to English so that I can more easily read it (my Italian is pathetic), I have imposed upon the exclusive right to make a derivative work. In both cases, I can be sued by the copyright holder or the government. Now, if I am sued, I can raise the affirmative defense of Fair Use and will likely prevail. Although this is not clear with regard to the DVD example, since the courts in the DeCSS case were unable to imagine legitimate uses for decrypting and copying DVDs. However, whether I prevail under the affirmative defense of Fair Use or not, the point is, I must still defend myself in court. Why must I defend myself when making copies or derivative works for my own personal use? Seems to me that the burden should be to show that not only did I make a copy or derivative work, but that I intended to or did distribute (display or perform) the work. After all, it is public distribution that harms the copyright holder, not my personal use of a work I have legitimately obtained.
If, as the Court suggests here, the First Amendment requires a stronger showing of harm before the government may impose the burden of an affirmative defense, then the exclusive rights of copying and derivative works must be subordinate to the exclusive rights of distribution, display and performance. In other words, merely showing that I have copied a work should be insufficient to haul me into court and force me to make an affirmative defense. The copyright holder would have to show that I not only made a copy, but intended or did publicly distribute that copy before I could be forced to make an affirmative defense of Fair Use.
Now, copyright law has traditionally been fairly immune to First Amendment scrutiny, but that position is becoming increasingly untenable. Moreover, the court will address that very question when it takes a look at Eldred v. Ashcroft. How will the Court handle its strong First Amendment defense in Free Speech Coalition when considering Eldred? Frankly, I don't know and I am not optimistic, but any decision that does not recognize First Amendment priority over copyright law is going to create some serious cases of cognitive dissonance.
The Future of Kiddie Pr0n
Clearly, the possibility of computer generated images of children engaged in explicit sex acts is frightening. Moreover, the technology is getting quite good and it is very likely that graphics are currently sophisticated enough to satisfy some pedophiles, though images that fool experts may not be available for many years. As Justice O'Conner claimed:
Computer-generated images lodged with the Court by Amici Curiae National Law Center for Children and Families et al. bear a remarkable likeness to actual human beings. Anyone who has seen [apparently not many, according to box office receipts], for example, the film Final Fantasy: The Spirits Within (H. Sakaguchi and M. Sakakibara directors, 2001) can understand the Government's concern. [links added]
Justice O'Connor was probably referring to something like the cheesecake "photo" of Final Fantasy's female lead in Maxim Magazine (MAXIM Aki). Of course, the image of Aki in Maxim is not too far removed from the images found in Playboy [insert cheap joke about unreality of airbrushed Playboy centerfolds here]. See also, the LA Times ('Virtual' Porn: Born of Digital Wizardry). Even The New Republic has published a short article about some of the implications of impossibly perfect computer-generated images of the female form (Washington Diarist: Game Over). Without a doubt, some very realistic images will be available in the next few years.
However, if you extrapolate advances in technology a few more years beyond that, the problem of virtual child porn becomes more intractable from the perspective of the First Amendment. The reason is that technology will permit the separating of the "actor" from the script, or in the case of a still "photo", the pose.
One of the main advantages of virtual actors, or "synthespians" is that they are easily substituted for one another. Synthespians are merely 3D models wrapped with a graphically designed "skin". This 2D "skin" is wrapped around the 3D model and gives it the desired look. Skins are created with graphics programs such as Photoshop. Do you want to change Lara Croft's hair color in the game Tomb Raider? Change Lara's skin in photoshop. The entire appearance of the 3D model can be changed by changing the model's skin.
Indeed, in the realm of 3D computer games, there are entire fan websites devoted to developing new "skins" for the 3D models featured in the games. Although the technology is still relatively primitive, there is no doubt that it will improve. These skins, of course, are not necessarily limited to soldiers and aliens. There is nothing to prevent the creation of more sexually-oriented skins, such as this Nazi Dominatrix (see also Topless and Nude Female Elites) from the popular game Return to Castle Wolfenstein. Moreover, although the 3D models in games are relatively crude (low polygon counts in order to increase game speed), there is nothing to stop anyone from creating much higher resolution 3D models for still "photos".
The result is obvious. Virtual child pornographers will transmit 3D model and skins separately. The ultimate image will be created on the recipient's computer. Pornographically posed 3D models that could be either children or adults cannot be banned under the First Amendment. Nor can "skins" that resemble children be banned, since there are legitimate uses for them. Pedophiles will have a number of "child synthespians" on their computer, which they will match with a variety of 3D model "poses".
Such virtual pornography is inevitable for a number of reasons:
- Virtual porn has no physical, or moral limits — whatever can be fantasized can be created (Erosynthesia: Erotica without Physical Limits) [Warning: linked site contains virtual nudity].
- One 3D model can be matched with dozens of various synthespians to meet the market's needs. Prefer blondes, brunettes or redheads? Have it your way. Even put "yourself" in the scene.
- Sets can be changed with relative ease. A 3D model of a couple on a flat surface, such as a table, can be made to appear as part of a kitchen, schoolroom or the altar of a church, whichever you prefer.
- A 3D model can be viewed from whatever angle the viewer desires. Close-ups or physically impossible shots are possible.
- The major costs of the technology are being borne by the gaming and filmmaking industries, pornographers merely have to adapt them, and pornographers are well-known to be early adopters.
- Moore's Law — Final Fantasy may have needed to be created by an expensive rendering farm, but in 10 years, the computing power necessary to render Maxim's Aki in a few seconds will be available in Palm Pilots.
- Software interfaces and ease-of-use will improve to the point that the average consumer will be able to create models and modify skins with just a little determination.
- This model of distribution almost completely undermines obscenity law. In the US, it is legal to possess obscene material but not to distribute it. By separating script from skin, it will be difficult to prosecute people for distributing obscenity.
- Synthespians never say no and never tire.
While still "photos" are currently the most realistic, there are already films being distributed on the Internet using this distinction between "script" and "actor". This type of filmmaking is known as Machinima. Typically, a machinima film uses synthespians whose actions are determined by a "script" that designates how the models are to move and interact with their virtual environment. To view a machinima film, one downloads the "script" and various image files, such as the "actors" and "sets". While these files are typically bundled, that is not necessary, especially if one already has the appropriate files on their computer already. The "film" is then rendered in real time on the viewer's computer, typically by using a 3D game engine, such as Unreal.
One aspect of the Unreal engine makes it particularly popular for machinima. Unreal uses "skeletal animation," which allows creators to easily use the same animations for different 3D models and skins. The system is called "skeletal" because it is based on a system of "bones" embedded within a model. In skeletal animation, one moves the "bones" rather than manipulating the model directly.
It is only a matter of time before the first machinima porn is created. It will probably be crude, but experience shows that those who view pornography are not particularly concerned with the production values. In any case, we can be sure that advances in graphics technology will continue to bedevil First Amendment law.