Fake kids and robo-drunks

You may not have heard, but Patrick Naughton shook the child-porn conviction lodged against him last fall. It was overturned late last month after the 9th Circuit Court of Appeals struck down part of the Child Pornography Prevention Act of 1996 (CPPA) under which the former Infoseek exec was convicted. "How'd I miss that one?!" you ask yourself. I'm sure I don't know, but if it's because you were busy hanging out in bars with robots who look like the barflies from Cheers, the 9th might like to have a little chat with you, too.

The 9th Circuit, which covers everything west of Utah, didn't make the connection between the CPPA dismissal and a recent suit brought by a couple of actors charging privacy infringement of their Cheers characters by robots—yes, robots. But the two cases are brothers under the nonexistent skin: Instead of artificial intelligence or virtual reality, the 9th Circuit is currently at play in the much weirder—and, pardon the expression, more real—fields of artificial reality.

Naughton's sole conviction—he awaits retrial this spring on counts of soliciting sex with a minor and crossing state lines for same—came under CPPA, which effectively bans pornography that appears to show children, even if no actual children were used in its creation. Overturning the CPPA means that images developed strictly by computer and not showing any particular child are protected speech, since, though they're loathsome, they don't hurt any real kids. There was a hotly written dissent to this opinion, but that was the ruling: No humans, no harm, no foul. Even though the evidence in the Naughton case involved images of real children, any conviction under a law ruled unconstitutional must be tossed out.

But then we have the robots. Actors George "Norm" Wendt and John "Cliff" Ratzenberger brought suit in 1997 against Host International, the people who overcharge you for food and sundries at the airport. Host developed a chain of airport bars with a Cheers theme, having licensed the rights from Paramount. Host included in the bars animatronic robot sort-of likenesses of Cliff and Norm. But no one asked Wendt or Ratzenberger, who sued and won a decision saying that, no, Host isn't allowed to use the Cheers characters because the public associates the characters more with the actors than with the stanky bar they sat in.

Give yourself a gold star and maybe a law degree if you notice that these decisions conflict. The CPPA decision was a straight-on First Amendment call: Since no actual children are being harmed in the creation of virtual porn and there's no proof that they're harmed by its mere existence, it's protected speech. The Wendt-Ratzenberger decision, on the other hand, says that the First Amendment rights of the copyright holders (that is, Paramount) to put on, essentially, a little dramatic production in a make-believe Cheers takes a back seat to the rights of two actors, harmed by seeing virtual versions of fictional characters they played on a sitcom.

Put them both together and what have you got? An area of First Amendment law in which high tech is vastly outstripping the ability of the law to keep up with "reality."

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