Justice Antonin Scalia, in his majority opinion, argued that video games must be protected as free speech because of their status as art. This put them alongside things like books, film and music in the court’s eyes.

Another part of Scalia’s argument was that there was no precedent for the restriction of violence to children in the same way that there was a restriction to sexual imagery like pornography. The ruling basically said that it is OK to sell violent imagery to kids, but not sexual imagery.

This distinction has people talking, mostly about the hypocrisy of such a dichotomy. Why, in this country, do we demonize sex much more than violence? Are we a violent culture? Are our sexual sensibilities warped because of our puritanical beginnings? All of these questions were at the heart of Jon Stewart’s take on the SCOTUS ruling on last night’s episode of The Daily Show.

Talking over footage from a recent Mortal Kombat game where a woman is pulled apart at the groin and disemboweled, Stewart points out the strange nature of the ruling.

The U.S. Supreme Court determined seven to two that the State of California has no interest in restricting the sale of this game to children, but, if while being disemboweled this woman were to suffer perhaps a nip-slip – regulate away.

Stewart also debuts a new game for Wii that looks promising. Check it out below –

It seems as though people both agree and disagree with Stewart’s take on the SCOTUS decision. Check out these responses from Twitter –

So what do you guys think about the SCOTUS ruling? Is it hypocritical to allow our kids violence but shield them from anything sexual? Let us know how you feel.

The Taiwanese animation company’s timely video enactments of America’s top news have become staples of YouTube. The breadth of what they choose to cover is impressive. Just today they animated the New York gay marriage bill, Obama’s YouTube channel, and Lady Gaga news.

And then there’s this, which I can only describe as transcendent.

NMA has decided to give their interpretation of yesterday’s landmark Supreme Court decision about the sale of violent video games to minors. In that decision, the SCOTUS ruled a California state law prohibiting the sale of mature games to children unconstitutional.

Writing for the majority, Justice Antonin Scalia ruled that the state law does not fall into line with the first amendment and that video games, like books and films, deserve freedom of speech protection. Not only is this a win for the video game industry, but also a win for first amendment advocates everywhere. Opponents of the SCOTUS ruling say that the games are obscene and the government should be allowed to regulate their distribution.

NMA’s take on the whole thing is worth watching for its use of the violence motif even during the Supreme Court hearing sequences. Add an American flag, some kids and Grand Theft Auto and this becomes gold.

They are also able to point out the strange disconnect that we, in America, have about sex and violence in a 60 second clip. One is okay, while the other is highly restricted. Swell commentary, NMA. Swell.

Check it out below –

But the SCOTUS has made a ruling on the case based on first amendment free speech rights, and in doing so has declared videos games on par with other forms of artistic expression like books, film and music.

The case was originally titled Schwarzenegger v. Entertainment Merchants Association, but the filing party was changed to Brown. The state of California originally passed bill AB 1179 which attempted to make the sale of the violent games illegal. Here is the criteria from the original bill on whats makes a game fall into that “ultra-violent” category –

A reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon
images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious physical abuse to the
victim.

The California courts subsequently ruled this law to be unconstitutional. The state appealed to the SCOTUS, and they agreed to hear the case.

And today, in a 7-2 ruling, the SCOTUS upheld that the new law is in fact unconstitutional. Writing for the majority, Justice Antonin Scalia says that the act “does not comport with the First Amendment” and that “video games qualify for First Amendment protection.”

From the opinion –

The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, California’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out- come, is unpersuasive. Pp. 2–11.

It looks like the court thinks that the California state law unjustly and unprecedentedly opens up a can of worms when it comes to content regulation. Scalia went on to say that the gaming industry’s voluntary rating system (E, Teen, Mature, etc.) allows enough help for parents who wants to restrict their children’s access to violent content. He also added that the act is “overinclusive” because not all parents want their children restricted to violent video games.

So, besides being a huge win for the gaming industry, does this ruling give even more legitimacy to video games as an art form? If so, that may ruffle Roger Ebert’s feathers a little bit.

You can expect the interwebs to respond heavily when either free speech or video games are discussed. Put them together and whoa. Here are some of the top responses of Twitter –

Most of the comments rolling in on Twitter take this shape and agree with the decision. There are a few, however, that have a different opinion –

I, for one, would not be the well-adjusted man that I am today without ripping out some spinal cord as a fatality in Mortal Kombat when I was nine. The argument can rage on whether young kids are harmed by violent video games, but the SCOTUS, with this ruling, is leaving that debate up to the parents. I’m sure most of us can be happy that with this decision, video games as an art form just scored another one in the win column.

Manufacturers and retailers actually call it vertical “retail price management” (RPM). The practice entails setting a minimum price retailers can sell specific items for. Remember last Christmas, when you spent hours online comparative shopping only to find out everybody who carried it was selling it for exactly the same price?

That was likely because of RPM, which for the previous 95 years had been considered illegal under antitrust law. The Supreme Court didn’t actually declare RPM legal in its 5-4 landmark decision, but the court did say it wasn’t always illegal. Though the ruling made way for antitrust claims to be considered on a case-by-case basis, it also made way for big retailers to collude with manufactures to drive prices up while disincentivizing purchasing from smaller, perhaps lesser-known retailers.

For example, while Store A and Store B have offer the same required minimum price on a certain toaster during a busy shopping period, Store B is much bigger and has the means to add incentives to buying from them that Store A can’t match. This could come in the form of additional services, freebies, discounts on other items, or discount partnerships with other major players.

Proponents of RPMs argue minimum pricing sometimes actually boosts competition, a viewpoint SCOTUS obviously agreed with in 2007. But eBay, Burlington, and the FTC are arguing that not only does minimum pricing hurt competition, it is also anti-consumer because the result is artificial price inflation—a guarantee the customer always pays too much and has no competition to turn to for remedy.

eBay goes as far as to say manufacturers and retailers use RPM to ramrod smaller players.

“There is evidence that small and midsized Internet retailers are the primary target of aggressive RPM policies," eBay veep Tod Cohen told IDG. "Many eBay sellers have been targeted by manufacturers and large retail partners with various tactics to take down their listings and discredit their sales."   

Herbert Kohl

Senator Herbert Kohl (D-WI) has taken up the cause, introducing the Discount Pricing Consumer Protection Act, which is to serve as an amendment to the Sherman Antitrust Act. To that act, the legislation adds this sentence:

“Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act.”

The bill currently has been referred to the Senate Judiciary Committee for review.
 

Vonage May Get Stay Of Execution

Under the decision, patents will be more easily challengeable based existing, ordinary circumstances, or obvious need or improvement. While that’s good news for new businesses, especially new businesses being hammered by behemoth corporations in court, it’s bad news for a slew of patent-holders.

The Court believes the reverse stifles innovation and clogs up the court system with bogus filings. Though expected to slow down the system initially, as questionable patents are cleaned out, the ruling is also expected to speed things up in the long run.

In the majority opinion, Justice Anthony Kennedy wrote:

Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

Vonage recently lost a devastating dispute with Verizon that found the VoIP company in violation of three patents. Though a subsequent ruling allowed Vonage to continue signing up new customers while the appeals process was underway, Vonage was in danger of complete shutdown.

The day after the judgment was issued, Vonage filed with the US Court of Appeals, hoping for a new trial. The company’s legal head cites the decision as protection against being sued for improving on a previous invention. Verizon, as expected, disagrees, saying the appeal is just "a delaying tactic."

"This certainly is opportunistic of Vonage, but it will be interesting to see how the courts react to this request," writes TechDirt president and CEO Mike Masnick. "In the meantime, expect many more cases along these lines in the near future."

One of those cases, Masnick might predict, could involve Amazon’s patent on counting pages. Judging from the way it’s written, Amazon’s patent lawyers got this one through by lulling the USPTO into cyclical slumber. Even the Abstract’s too long.

On the upside, the study also says most people learned from mistakes forced on them by various forms of garbage trying to edge their way into computers. According to the report by Susannah Fox, 91% of Internet users have changed their online habits to avoid the hassles of electronic invaders.

The report said that 81% of Internet users don’t open email attachments unless they know their good. 46% quit visiting questionable website for fear of unwanted injections, 25% quit fooling with P2P downloads for fear of downloading more than they bargained for (not SCOTUS decisions), and 18% said they’ve switched browsers (what no IE?).

The reason for all these changes is about 68% or 93 million users of the Internet have been forced to do the spyware nasty against their will in one form or another and 60% of that 93 million didn’t know where the problems originated. 25% of Internet users have had new programs show up they didn’t install and new icons showing up out of nowhere. 18% have had their homepage changed without their knowledge.

“These survey results show that as Internet users gain experience with spyware and adware, they are more likely to say they are changing their behavior. But what is more alarming is the larger universe of people who have struggled with mysterious computer problems, but have no idea why. Internet users are increasingly frustrated and frightened that they are not in charge of their Internet experience.”

The sample for the telephone survey was 1366 Internet users and had a margin of error of plus or minus 3 points.

This just reiterates several problems. Unfortunately, with most activities, there are always hassles. You can break a leg playing football, you can spend too much money on baseball cards, and you can get the wrong thing at the drug store. In most cases, while people are out to make money, they generally are not out to intentionally cause you harm.

Many of the creators of the spyware and viruses are. They want to know things about out or create problems. In many cases, it’s not to harm the individual; it’s a case of oneupsmanship. It seems there are more malevolent entities online than there is walking through some of the most dangerous neighborhoods in the world. It costs individuals time and money to get the repairs done, it cost individuals and companies money for the security software and such. Unfortunately, the study showed that even when users are savvy and take all the precautions, they still won’t be safe.

As e-commerce continues to grow, reliable, safe networks for transferring information, sometimes important information like credit card numbers can be crucial. Spyware and the like can be used to swipe that info so consumers and all users of the Internet must be cautious. There are a number of excellent programs out there in case you don’t know. I personally have had success with both AdAware and Spybot S&D. There are others out there. Those two have free versions so please check them out if you haven’t before. You may be surprised what’s hiding in your hard drive.

John Stith is a staff writer for WebProNews covering technology and business.