Big Smoke

'cause it's hard to see from where I'm standin'

Sign Here at the Dotted Line

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Part of Section 9 of Electronic Arts’ Terms of Service – the End-User License Agreement that everybody signs after buying (or, rather, in the software world, leasing the rights to use) a product and before installing it:

EA may also terminate access to EA Services for violation of this Terms of Service (in its sole discretion) … You may lose your user name and persona as a result of termination. If you have more than one (1) Account, EA may terminate all of your Accounts and all related Entitlements. In response to a violation of these Terms of Service or any other agreement applicable to EA Services accessed by you, EA may issue you a warning, suspend your Account, selectively remove, revoke or garnish Entitlements at an Account and/or device level , immediately terminate any and all Accounts that you have established and/or temporarily or permanently ban your device and/or machine from accessing all EA Services or certain EA Services. You acknowledge that in such an instance EA is not required to provide you notice before taking action to suspend or terminate your Account, temporarily or permanently banning your device from some or all EA Services or selectively removing, revoking or garnishing Entitlements associated with your Account. If EA terminates your Account, you may not participate in an EA Service again without EA’s express permission. EA reserves the right to refuse to keep Accounts for, and provide EA Services to, any individual. You may not allow individuals whose Accounts have been terminated by EA to use your Account.

If your Account, or a particular subscription for an EA Service associated with your Account, is terminated, suspended and/or if any Entitlements are selectively removed, revoked or garnished from your Account and/or if your device is temporarily or permanently banned from accessing some or all EA Services, no refund will be granted, no Entitlements will be credited to you or converted to cash or other forms of reimbursement, and you will have no further access to your Account or Entitlements associated with your Account or the particular EA Service.

Part of Section 11 of EA’s ToS:

You may violate the Terms of Service if, as determined by EA in its sole discretion, you:

[long list of actions]

Specific EA Services may also post additional rules that apply to your conduct on those services.

In short: “You agree that we can cut our services to you with no prior notice or compensation if it should break rules that we can invent after the fact, as interpreted by us only.”

In shorter: “You agree that fuck you.”

This has come to light of late mainly because Electronic Arts’ forums are tied to the same account as their games – with their new digital download service named ‘Origin’ – which means that any disputes over forum conduct has ended up in the permanent suspension of more than a few people’s game accounts. In one case, a gamer used the word “badass” on one of EA’s forums and, being banned due to a word filter, found he was banned from every game he purchased from EA as well.

Now, the funny aspect of this, if you can call it that, is that Terms of Services and End-User License Agreements are largely untested, legally, and as such their status as binding contracts are currently dubious. Indeed, it is hard to imagine that Section 20 of the ToS, which categorically denies customers the right to trial by jury and class-action lawsuits as well as severely limits the window of time in which they’re allowed to dispute anything at all, would be all that defensible if actually challenged.

Indeed, consumer rights legislation requires that, if a service is paid for, it remains available, and if it stops being available, a refund is offered. However, on the internet, the rules (seemingly in outsize response to piracy) have become fantastically draconian and currently exist largely because nobody’s taken the time to fight them yet. They’ve attempted to redefine products as services (for instance, a piece of software that you purchase for use offline is not a “product,” but a “service” that you lease the rights to use – a service that can be revoked), and now they’re attempting to redefine the parameters of services themselves.

Clearly this is just reality being a few years ahead of legislation, but it’s an incredibly sour note in the rather hostile relationship between corporations and consumers of late. At least, in the internet, nobody has yet and nobody likely will able to put a lid on piracy, so the consumers, for the moment, still have the upper hand.

Speech? What speech?

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I’ve been wrestling with a rebuttal to Gleen Greenwald’s views on the Supreme Court ruling banning any campaign finance regulations. He’s decidedly liberal and takes no prisoners on either side of the debate, which is why it surprised me that he would defend the rulings that, in my view, threaten to destroy once and for all any vestige of democracy our Republic has. Clearly, I believe he has it wrong; specifically, that framing the argument as a constitutional one based on the First Amendment is the wrong way to go at it. It’s not a speech issue – even if the specific reason for the First Amendment was to protect political speech – it’s a commerce issue.

Luckily, Lawrence Lessig, professor of Law at Stanford and formerly Harvard took him down a notch on the Huffington Post, arguing that he’s gone down a dangerous line of reasoning in his zeal. I’d argue, though, that claiming corporations and other corporated organizations like unions and political parties are considered “people” because they are protected from government search and seizure is a disastrously liberal (in the small ‘l’ version of the word) interpretation of corporations as legal entities. They have protections for property and legal liabilities for debt: They do not speak, especially not politically. Their constituents speak, and have protected speech, but they do not.

The argument for Free Speech flies straight in the face of what Greenwald and everybody else who has a brain pretty much understands: That what this ruling entails is taking the kid gloves off for corporate oligarchy, destroying the political Free Speech of the great vast majority of the US population and thus destroying our collective Human Rights. Simply put, either we should all have equal time on the airwaves or none of us does, else we should drop the pretense of egalitarianism when it comes to speech. As it stands, what we have is a situation where the only “message” that gets out – and Karl Rove would be proud of this – is the one whose purveyors have the economic means of conveying it. Money isn’t necessarily speech, but it becomes the gatekeeper to speech.

Arguably, the Founding Fathers accepted this, considering the United States’ original restrictions on voting to land-owning white males, and as such this current monetary restriction – namely, who can afford campaign ads – is not without precedent, but it is certainly regressive in the extreme. But that said, this is not a speech issue. This is a commerce issue. This is the protection of property run rampant: When property is so encompassing as to include media rights, and its protection so immutable in the eyes (and guise) of the legislature, democracy falls hollow. The fundamental human right to Speech has fallen before the commercial right to Opportunity.

The corporations have bought themselves so many human rights they’re the only humans actually recognized.

Quote Unquote Productivity

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Hellooo thought-crime.

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