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Oct 26, 2005

Comments

1.

Normally that wouldn't be the kind of case where I would side with the government... Saturday Night Live has been using the seal for years hasn't it? But the one point I would give the White House is that The Onion does tend to present its stories without any indication that they're just kidding. At least, no indication other than the stories being unbelievable to a normal mind ("Jesus Returns to the NBA"). I suppose I'm sitting on the fence for this one. The White House does serve us by protecting its reputation, regardless of who is serving in it.

P.S. There are ridiculous stories out there that *are* believed, after all. A close friend of mine who speaks Spanish fluently told me that a group of Spanish-only coworkers of his sincerely believed that Bush was trying to have a law passed that would mandate all Latino babies be aborted.

2.

No offense, and it's a good story, but I don't see the virtual world connection in it... (Unless the White House is recognizing virtual worlds as sovereign entities? =P)

3.

Cory > the Onion, America's Finest News Source

I thought that that was the Daily Show. Which btw we now get in the UK, on more4 weeknights at 20:30 - w00t!

4.

This is basicly a none story.

By federal law the white house is required to go after anyone using the seal of the president and vice-president that mis-use it and when they are notified about it. A commerical company, The Onion, used it for profit is a violation, someone sent a notification to the white house legal office about it and by law the legal office is required to go after The Onion.

The Onion is a parody/satericl site(well until around a year ago it was still funny) so if this goes anywhere it would be an interesting court case.

5.

The virtual angle -- admittedly tenuous at best -- is that had the Whitehouse been reading MUD-Dev in 1987, they would have known to handle this differently.

6.

Not to impugn MUD-Dev, but it's just as well the 1987 White House was focused on slightly more important things, such as ending the Cold War on terms favorable to humanity. If that left them a little behind the curve on online culture, well, that seems like an acceptable sacrifice.

As for the White House's request that The Onion not use the presidential seal, sure, it seems a little silly. I agree with those who've pointed out that it's important to protect the integrity of the symbol, which means monitoring and restricting its usage, but a little research would have shown that The Onion's use was satirical (like SNL's). (Although I note that there are still "journalists" who get snookered occasionally into breathlessly reporting some Onion story as true, usually because it seems to support some deeply-held political belief of theirs.)

Still, making a point of highlighting the White House's minor cultural cluelessness strikes me as more likely to be someone just taking an opportunity to tweak an adminstration they don't like.

I'm talking about CNN, of course....

--Bart

7.

Perhaps people have forgotten the purpose of a seal. A seal is a representative symbol used to authenticate something. It's why people once put wax seals on letters. And this is certainly the purpose of the presidential seal.

Note the definitions:

seal
n.
1. c. The design or emblem itself, belonging exclusively to the user: a monarch's seal.
2. Something, such as a commercial hallmark, that authenticates, confirms, or attests.

(I excluded the 1a and 1b definitions, because they simply dealt with seals being something made from wax.)

What I am wondering, is why the onion doesn't remove the seal when asked? Apparently, they have refused. Even if you don't like the president, I think we all can agree things like the president's seal should be at least a little sacred. It's a sad day and a cynical day when the president is scowled for trying to uphold the integrity of the office and do justice to the history of the nation.

As a side note: The Onion isn't exactly the nicest satire in the world. I have friends over in Iraq right now and one of them was recently KIA. (And I live in California, so I can't imagine what is must be like in the more military-oriented states.) Considering the reality of the situation, I find a lot of the onion's humor in rather bad taste. That’s the nature of satire, you say? I guess I find some satire in bad taste then ^_^

8.

First, a good point that there's no apparent link between this story and virtual worlds. My stab at this point would be: what if the presidential seal were used as an image in a virtual world? I imagine the results would be about the same as we're seeing with the Onion. [see end of this comment for my second stab]

However, since the topic seems to be moving forward anyway, I'll add something somewhat overlooked by related articles -- the code itself:

TITLE 18 > PART I > CHAPTER 33 > § 713

§ 713. Use of likenesses of the great seal of the United States, the seals of the President and Vice President, the seal of the United States Senate, the seal of the United States House of Representatives, and the seal of the United States Congress

(a) Whoever knowingly displays any printed or other likeness of the great seal of the United States, or of the seals of the President or the Vice President of the United States, or the seal of the United States Senate, or the seal of the United States House of Representatives, or the seal of the United States Congress, or any facsimile thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof, shall be fined under this title or imprisoned not more than six months, or both.

****************

The pertinent part is, "calculated to convey, a false impression of sponsorship or approval...."

Other than that, I don't have much to add, other than I find it rather funny that Fizloki has used "1. c. The design or emblem itself, belonging exclusively to the user: a monarch's seal." as a definition applied to the presidential seal, when it's clearly stated in Article I, Section 9, Clause 8 of the U.S. Constitution that "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

I know, "monarch" is just an example the definition used. However, the second definition doesn't really apply. I just thought it humourous.

I do think your question, Fizloki, of why the Onion has not taken it down, is a valid one. I believe a partial answer would be that until actually charged for the violation, the Onion, believing it's not violating the U.S. Code, is not actually "required" to remove it. Of course, if the U.S. Attorney were to charge the Onion, it would have to be as a result of a "complaint by any authorized representative of any department or agency of the United States...." Which means the White House would have to file an official complaint. At this point, it seems the White House has relegated itself merely to sending a polite letter. (In short, this is a loose example of due process and other constitutional protections).

Holding the seal as "sacred" transcends law, and represents more of an ethical issue. This situation somewhat mirrors the issue of whether a constitutional amendment prohibiting the burning of the American Flag should be passed.

So, I'll take ONE final stab at integrating this into the virtual discussion, hopefully having successfully linked the burning flag issue.

Hypothetical: The Burning Flag Amendment has been passed. It is now illegal and punishable by fines and imprisonment to in any way desecrate any likeness of the American Flag in any form. (except in officially recognized rituals)

The day after the amendment passes, a game developer codes an exact replica of the American Flag into Second Life, places it gently atop a pile of wood, and, joined by a dozen other SLers, sets the pile ablaze, while the anarchistic denizens of that virtual world chant and dance around the bonfire engulfing the flag.

Would the Amendment apply?

9.

I mean no offense when I say this mate, but aren't you nitpicking a little? Like you noted, the first definition's use of monarch is simply an example. I am sure we all knew that the US is not a monarchy, thank you for citing the constitution in order to point it out tho :P I fail to see how the second definition fails to apply. Is not the president's seal an authenticating emblem? Is that not why one is disallowed use of it if it is, "calculated to convey, a false impression of sponsorship or approval....?" Lastly, I know the word sacred, "represents more of an ethical issue." That is why I used it.

That being said, thank you for pointing out that only letters have been written. That's what I figured had happened, but all the uproar had led me to believe something more news-worthy had occurred.

In answer to your query posed at the end of your post: I suppose it depends on whether the virtual flag falls under a "likeness of the American flag." From my limited law school training as a 1L, in answering this question I think the judge would have to determine the intention of the legislature. For instance, did they say, "any likeness" in order to for it to include all the possible shapes, sizes and custom-made (physical) flags that might be out there? Or did they really mean, "any likeness," in a broader sense? It's an interesting question and if it were to pass and if technology keeps moving along as it is now, this is a question the Supreme Court might confront one day. Of course, by that day who knows how real the virtual world may have become?

10.

Sorry, the above post belong to me.

11.

I'm wondering if the UN is going to care about the use of their symbols in the simulated UN building where they held the talk with Pentagon strategist Thomas Barnett yesterday in Second Life.

The Onion story does apply to online worlds because images, including state symbols, flags, seals, etc. are constantly uploaded into the Second Life world and used for either role-player or simulation all the time.

I'm thinking some of the "right-clickers' rights" law could be invoked here, such as in the Supreme Court's Feist v. Rural Telephone, about the "fair use" doctrine as applied to the use of images on the Internet, and the California case Kelly v. Ditto.com, about the search crawler lifting the artists' jpegs off her website.

The judge in Kelly held that there were 4 criteria to determine whether images were permissible:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.

I realize state seals and artworks are different animals and different laws may apply but I'm thinking at the end of the day, in a game, someone can either say they were only playing a game, or only making a thumb-nail type reference, or only using it for educational purposes so it would all fit under "fair use" doctrine.

http://www.schwimmerlegal.com/ has pointed out that the US Code actually says the use of the presidential seal is barred "for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States."
That will be the Onion's defense and it may stick.

So you could argue that the Onion or a game wasn't "reasonably calculating" and was not deliberately creating a false impression, but creating a parody or an educational reference. Schimmer also came up with a similar case
at http://www.archives.gov/news/john-roberts/reagan-library-collections-2/JGR-SealofthePresident-6of9-Box49.pdf Here Judge Roberts talks about the issue of "possible impression of governmental sponsorship or approval conveyed" and and "steps...that could be taken to "correct the false impression of association with the Government."

Hey, why talk about our RL government here when we could be talking about *games*? Recently Linden Lab stepped in and asked two fledgling institutions within the VW of Second Life, the SL Superior Court and the SL Stock Exchange, to take the words "SL" out of their names, not only because this was a trademarked term, but because it created this very confussion about "false association with the government," i.e. implying LL approval (or more to the point, liability for litigation) for the activities of a court and a stock market. These two entities complied and deftly changed their names to "Metaverse Superior Court" and "Metaverse Stock Market" because, well, the Metaverse is still up for grabs and not taken over by game companies yet.

Meanwhile, I asked the question then why "SL Mediators" or for that matter "SL Boxing" or "SL-Rentals" or thousands of things named "SL" weren't being asked to remove the name. And why even with these two more confusable entities steps couldn't have been taken to remove any false impression of approval or liability.

12.

Well, the White House embarassed itself with the Miers' nomination to the Supreme Court that got shot down, and now it seems the Supreme Court may have to embarass the White House again when it informs them of the "Fair Use" policy of our 1st Amendment.

The White House has heard of our first amendment, right?

13.

Huh-huh....Onoin...bad taste...huh-huh.....

JHL

14.

The White House has heard of our first amendment, right?

It's unpatriotic. *ducks*

I guess I find some satire in bad taste then.

Most satire should find that someone thinks they have bad taste. The essence of satire is to trivialize and expose simultaneously, making a serious subject digestable, yet trumpeting it all at once. To denigrate satire based on taste is to defeat the entire purpose: it's tasteless to be truly antisocial, but when society is wrong, do you choose to have taste or to be right?

Now, if the Onion is wrong, then they should be smacked down, pure and simple. But that assumes they are, and while they are certainly guilty of hyperbole, are they guilty of illegality?

I suppose it depends on whether the virtual flag falls under a "likeness of the American flag."

Assuming that the Second Lifers were intentionally burning what THEY thought was a good likeness of the American flag, then I'd say that's just as good as burning any likeness, physical or virtual.

Laws about likenesses should apply based on the accused's intentions.

15.

So, if later it's found out that the SL flag was flawed in some way, say, missing an entire row of stars and a few horizontal bars, but they thought it was a perfect likeness of the American Flag, should they still be prosecuted?

What if in real life, Joebob found some white powder, and, honestly thinking it was toxic, sent it in an envelope to someone, honestly thinking it would harm that person? Is it still a crime, even if the powder turned out to be common, everyday flour? (and, if required to fit your final statement, it had the likeness of the toxic chemical. ;) )

16.

Um, I read Terra Nova because of my interest in the field of virtual worlds. I really don't need the sectarian joys of petty US political squabbling. There have been a couple of seriously off-topic posts recently, but this one really sticks in the craw.

You do, after all, have your own blog for such things...

17.

What if in real life, Joebob found some white powder, and, honestly thinking it was toxic, sent it in an envelope to someone, honestly thinking it would harm that person? Is it still a crime, even if the powder turned out to be common, everyday flour? (and, if required to fit your final statement, it had the likeness of the toxic chemical. ;) )

They should be found guilty of attempted murder. =P The spirit of the law, in my opinion, is ultimately to dissuade potential criminals, such as would-be murderers or flag-burners, from breaking it in the first place. Thus, if someone WANTS to kill someone, and then genuinely and sincerely believes that the course of action they are taking will result in that someone's death, then it's attempted murder. If they were right, then it's murder.

This said, IANAL, so I don't know the exact definition of attempted murder, so my choice of crime might be inaccurate. If a policeman loads a gun and puts it in his holster, and then a guy grabs it and shoots someone with it... only to discover they were blanks... He tried to kill someone. Period.

Perception is reality. =) Whether or not it's in a virtual world doesn't matter (as long as we assume there's jurisdiction, and I think it's pretty definite that there is), it looks like a flag, so it is a likeness.

Now, if you want to try an insanity plea, that's your gambit, but a crime is a crime.

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