Journal articles on the topic 'United States. Freedom of information Discovery (Law)'

Law Clerk to Chief Judge Joy Flowers Conti, United States District Court for the Western District of Pennsylvania; J.D. magna cum laude 2015, University of Pittsburgh (Lead Executive Editor, University of Pittsburgh Law Review); B.A. 2009, University of North Florida. Thank you Professor Rhonda Wasserman for your advice and assistance on this paper and for an enlightening class on electronic discovery. Faculty for the University of Pittsburgh School of Law awarded this paper the William H. Eckert Prize.

ABSTRACTThis article examines how evidence about Program A in Country A may be utilized in Country B, and thus how utilization may explain the adoption of the same program. Elites and activists have a number of interests in using policy evidence from another country: to put an issue to a systemic or institutional agenda, mollify political pressure, provide an exemplar, indicate the range of options or reinforce conclusions already reached. The interests of the importer dictate the nature, timing and origins of the evidence injected into policy debate. This framework is applied to the case of freedom of information policy. An analysis of how and why evidence about the United States Freedom of Information Act (FOIA) was utilized in Canada and Britain reveals that FOIA was used as an exemplar in Canada and the reverse in Britain.

The paper is to examine the influence of press freedom and media ownership in the performance of the media institutions in the United States of America and Federal Republic of Nigeria. However, in order to set for such discourse there is indispensable need to review some of the normative theories of the media, which will enable us to locate the appropriate principles guiding the operation of the media in each countries under study. The subdivided into: Abstract, Introduction, Normative Theories of the press, press freedom in United States, press freedom in Nigeria (democracy and press freedom, freedom of information act and conclusion). The analysis concludes that, The United States even has provision in their law and constitution forbidding state interference in the area of information content and dissemination. In Nigeria however, the state control society including the mass media. In this regard, whether media are owned by public or private individuals, they are only meant to service the government in power and were forbidden to criticize the government or its functionaries. The paper recommends that, For Nigerian press to be free the country should militate the all laws or factors that against the press freedom and Members of the Nigerian press must adhere to the ethics of the profession, in order to compete with others freers press of the other countries.

The subject. The article is devoted to the analysis of the freedom of speech and access to information in the context of the emerging system of international information security. The purpose of the article is to try to predict the positive and negative consequences of changing international relations in the digital age, to determine the role of freedom of speech and access to information in the context of confrontation between Russia and the United States. The research presented in this article was carried out by combining different disciplinary approaches, including comparative law, comparative politics and international relations, political theory and sociology. Moreover, study includes methods of dialectical logic, analysis and synthesis, as well as formal legal analysis of international legal acts of the UN. The main results and scope of their application. The rights of freedom of speech and access to information is undoubtedly one of the main in the global digital communication context. Degree of implementation of human and citizen rights to freedom of expression and access to information are indicators of political processes, the pace of building a civil society and legal state in current country. These rights are the foundation of modern democracy. The authors carry out a systematic analysis of the categories “freedom of speech” and “the right to access information”, identify the features of implementation of these rights in cyberspace, analyze international practice of legal regulation of these rights and assess the place and role of these rights in the emerging system of international information security. A legal analysis of international legal acts shows that the positions of the United States and the Russian Federation in the field of international information security are gradually converging, and the convergence is going in the direction of the Russian position Conclusions. The limits on the exercise of freedom of speech and access to information do not correspond to the level of development of public relations, because there are no effective legal tools to prevent defamation in the mass media, which in turn can lead to conflict between countries. It is concluded that there is a need for active international cooperation and consistent unification of the legislation of various countries, taking into account that freedom of speech and access to information in cyberspace should have the same level of protection as in the physical world.

Community-level legal and policy innovations or “experiments” can be important levers to improve health. States and localities are empowered through the 10th Amendment of the United States Constitution to use their police powers to protect the health and welfare of the public. Many legal and policy tools are available, including: the power to tax and spend; regulation; mandated education or disclosure of information, modifying the environment — whether built or natural (e.g., zoning, clean water laws); and indirect regulation (e.g., court rulings, or deregulation). These legal and policy interventions can be targeted to specific needs at the community level and are often relatively low-cost, but high impact interventions. As every community is different, effective laws and policies will vary. This freedom allows states and localities to, as Justice Louis Brandeis argued, truly serve as “laboratories of democracy.”

Freedom and equality are the content, the substance and the tension in a liberal democracy of today. Freedom and equality describe the design, stability and the quality of a democracy. Especially in a Quintuple Helix Model, the quality of democracy and sustainable development are closely related, because a high-quality democracy is a prerequisite for promoting sustainability in democracies. By investigating the quality of democracy this article develops two theses: 1.) Democracy with their quality rises or falls with the expression of freedom and/or equality; 2.) Democracy generates its stability from a balanced interaction between freedom and equality. With the concept of Democratic Life this article examines these two theses: Democratic Life as newly developed concept measures the quality of democracy with providing information about the type of a democracy and an approach to measure a democracy´s democratic development for the top 20 of the Democracy Ranking (2009). The central keys of the Democratic Life concept are the ‘Index of Classification’ and the ‘Democratic-Life-Index’, which are formed from an ‘Index of Freedom’ and an ‘Index of Equality’. By empirical examination of the research question of Democratic Life two essential questions in the modern democratic theory can be investigated: 1.) How democratic is a democracy? 2.) How much freedom and equality does a liberal democracy need? The countries analyzed for the Democratic Life concept in this article are the United States, Australia, Sweden and Germany in comparison between 1995 and 2008. This degree of democratic quality will create a lot of problems towards developing sustainability in a democracy, because in the United States there is currently a big disparity between freedom and equality.

Abstract This chapter focuses on the extent to which public health has been relied upon by the EU legislature or by Member States of the European Union to limit the freedom of commercial operators to promote their goods and services. First, it discusses why courts in the United States and in Europe have ruled that the freedom of commercial operators to advertise their goods and services should be protected, in light of the fundamental role advertising plays in a liberal market economy. It shows that freedom of commercial expression has been made conditional upon the disclosure of sufficient and reliable information to consumers, thus reflecting a model of consumer protection based on the well-informed and reasonably circumspect consumer. Secondly, it addresses the more controversial question of the extent to which public health may be invoked as an overriding requirement of public interest to curtail the right of commercial operators to promote their goods and services. The approach of the Court of Justice is compared with that taken by the US Supreme Court. This comparative approach highlights the differences between the two: the former is very reluctant to exercise its review powers, while the latter has made it excessively difficult for public authorities to impose any meaningful advertising restrictions. It is argued that neither court has been able to strike a suitable balance between, one the one hand, the need to review the validity of restrictions imposed by public authorities on commercial speech to ensure a high level of public health protection and, one the other hand, the need to ensure that courts do not substitute their assessment to that of the legislature in exercising their judicial review powers. A more balanced approach is required to ensure the adequate protection of consumer health.

Enacted in 1966 and effective July 4, 1967, the Freedom of Information Act (FOIA) gives people, both citizens and non-citizens, the right to request access to federal executive branch agency records. According to FOIA’s website, provided by the United States Department of Justice, FOIA “is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.” However, agencies may at their own discretion provide access to records that fall under these exemptions and exclusions when allowed by law. Due to amendments that have occurred overtime, FOIA remains relevant in today’s technological world. Some information, called proactive disclosures, are made freely available online by agencies, which do not require a request, and when requests are needed they can be made electronically. To truly understand FOIA an understanding of its general workings, amendment history and recent legislation is beneficial.

The subject of this article is the Russian and foreign legislative norms, materials of law enforcement practice, user policy agreements, scientific literature on the topic, and reports of the international organizations on human rights. The object of this research is the legal relations that regulate the existing mechanisms of information censorship on the Internet. The research contains a detailed historical-legal analysis of the mechanisms and principles of the implementation of regulation of the right to freedom of speech in the United States, with emphasis on the law enforcement practice. The author examines the latest Russian model of restrictions on the distribution of information, as well as the mechanism for preventing violations of the basic human rights and freedoms, which limits the possible impact on the exercise of political rights in the territory of the Russian Federation. The scientific novelty consists in the detailed analysis of previously unstudied aspects of restriction of information realized by the administration of social networks. In the course of this work, the author explores various approaches towards understanding the term censorship, as well as the constitutional legal peculiarities of information censorship on the Internet. The author proposes ways to develop legal provisions that regulate the exercise of rights in this sphere. The conclusion is made that on the need for development and legislative consolidation of the standards for user policy agreements, taking into account all available recommendations. The author makes proposals on improving the constitutional legal regulation of the right to information.

In June 2013, explosive claims and illicit revelations of domestic and global American intelligence surveillance operations, hacking, and collaboration with US Internet and information technology behemoths rocked the world. Simultaneously, the mysterious emergence in the Hong Kong Special Administrative Region (HKSAR) of runaway American intelligence contractor Edward J. Snowden at the heart of the intrigue shoved the small enclave to the fore of global geopolitics. Claiming to rely on Hong Kong's respect for the rule of law and tradition of dissent to shield him against American retaliation and extradition, the dubious protagonist's statements ingratiated himself to local political groups who petitioned Hong Kong and central Chinese governments not to send him back to the United States. During “Defend Snowden” demonstrations at the US consulate in Hong Kong involving hundreds of supporters, placards bearing the image of US President Barack Obama parodied, mocked, and ridiculed the leader of the free world using iconic adaptations of Captain America, George Orwell's “Big Brother,” and Shepard Fairey's Obama “Hope” visuals. Instead of an icon of “American freedom and ideology” (Serwer 2008) and an “idealized American nation” (Dittmer 2005, 627) Captain America, American president Barack Obama, and the United States of America were symbolically transformed into a signified Orwellian caped crusader threatening the world.

This article focused on US case law and analyzed the evolution of students’ freedom of speech from 1969 to this date in the US. Therefore, it briefly introduced the tests and doctrines, which were created in the landmark cases of the Supreme Court of the United States (SCOTUS), noting that these cases were dealing with offline, on-campus situations and their determinations are not necessarily fully applicable to situations we might experience today. Nevertheless, the tests and doctrines, which were created in SCOTUS landmark decisions, are still in force and every cyberbullying judgment is still based on them even in the era of the Internet. Taking into consideration that the world has changed since these tests were established, I examined some more recent cyberbullying cases in the US, where these above tests were applied.Based on the analysis of SCOTUS and some Circuit Court jurisprudence, Certain anomalies were revealed, which serve as a basis to clearly state that the US system suffers from severe deficiencies, like handling the off-campus origin of the speech, or defining the substantial disruption or the sufficient nexus. However, the US courts have worked out tests and doctrines as a basis for their cyberbullying jurisprudence, so they are on the right track, but the jurisprudence will remain ambiguous and unpredictable without a SCOTUS landmark decision regarding cyberbullying.

Purpose The purpose of this paper is to conduct a systematic review of published literature studying the health of African immigrants in the USA and to develop a formal set of recommendations for future researchers aiming to improve the health outcomes in this population. Design/methodology/approach A comprehensive search was initiated on PubMed, Cochrane, ERIC, DOAJ, Prospero and Scopus databases. Final inclusion criteria were: systematic reviews, studying African Immigrants in the USA, measuring a clinical health outcome, since 1999. Articles were screened in four stages by title, abstract, full-text of the review and full-text of the primary studies within each review. Data was abstracted by identifying general information, study population, outcome measurements, conclusions and recommendations of each review. Findings In the initial search, 519 potential reviews were identified. After removing duplicates, 473 articles were excluded by screening the title or abstract. After a full-text review of each article and primary study within each article, nine reviews were included in the final synthesis. Reviews covered Female Genital Cutting and Pregnancy Outcomes, Caesarean Births, Gestational Diabetes, Cancer, HIV/AIDS, Body-weight and Acculturation. Among the primary reports included in the final synthesis, less than 50 per cent studied African immigrants in the USA. African Americans living in the USA made up only 11 per cent of the pooled study sample. Research limitations/implications Immigrants from Africa are one of the fastest-growing populations in the USA. This group has been underrepresented in health research, leading to a poor understanding of the group’s health outcomes. Health researchers must adopt recommendations and prioritize studies that meet the health needs of Africans during this time of demographic transition. Originality/value Systematic reviews represent a bedrock of medical evidence and signify a solid understanding of accepted knowledge in the field. Systematic reviews, however, do not necessarily constitute the end of discovery. Researchers can use existing systematic reviews to critique previous studies or initiate future research. There remain significant research gaps analyzing the health outcomes, behaviors and treatment of subgroups of African immigrants living in the USA. Future research should shift toward the growing needs of the population, leveraging the strengths and diversity of African immigrants now living in the USA.

Since its discovery by the United States Department of Defense in 1969, internet usage continues to increase throughout the world. This occurs because the internet provides convenience to the public to obtain information that is needed and covers all fields of life. However, it also creates a new problem, namely the emergence of online gambling crime. Based on online gambling practices, the process of disclosure and enforcement by law enforcers against perpetrators was also relatively difficult to do either in the process of inspection, investigation and prosecution. Therefore, deeply further study is needed concerning online gambling from the legal point of view. This paper discusses the mode of operation of online gambling, and the deposit system in cash or transfer. Obstacles that occur in the process of law enforcement will also be analyzed from four aspects, namely investigators, evidence, operational budgets and facilities. In addition, the scope of this study is a case in Makassar city.

In recent years, extreme weather events, namely hurricanes, have compromised the college football schedule in the United States. Incidents of extreme weather have caused the cancellation, postponement, relocation, or otherwise alteration of dozens of Division I college football games in recent years. Focusing primarily on hurricanes, this study will present several concerns related to these storms and extreme weather in the US, and contractual law principles of common law defenses and force majeure clauses as they relate to college football game contracts. The purpose of the present study is to begin to better understand the football game contract inconsistencies that can lead to legal disputes faced by college football programs that deal with these storms, and gain a better insight of the contractual considerations made in light of these storms that are becoming increasinglyfrequent and severe. To do so, college football game contracts were obtained through Freedom of Information Act (FOIA) requests to select NCAA Division I colleges, internet-based searches, and media exchanges. Analysis of force majeure contract language revealed inconsistent definitions of force majeure events, a limited number of contracts containing specific weather-related force majeure language, and a range of force majeure events leading to the absence of a clear and consistent understanding of how extreme weather-related cancellations would impact the contractual relationships. Recommendations, asa result of the document analysis, are then made for provisionary revision and reconstruction to meet current realistic needs for individual schools. Societal consciousness regarding climate change is adjusting, therefore sport and legal practitioners can reflect this modernization by scrutinizing potential prudent risks.

This paper examines the idea of personal privacy and how the law has responded to expectations that it be adequately protected. The legal protection of personal privacy is evaluated in light of the concerns of homosexual persons that information about their sexual orientation remain confidential. Although individual privacy is a notion that can be used to argue for a sphere of individual freedom, in the sense that adult individuals should be free of government restriction on how they express themselves sexually in private, this paper focuses on privacy insofar as it relates to the undesired disclosure of information about a person's private life. This is privacy as secrecy, a concept which is concerned with the degree to which we are prepared to allow people to live their lives free from the intrusive prying of others. Whether the idea of breach of privacy as giving rise to civil responsibility has evolved under tort law is reviewed in the common law of both Canada and the United States. The inadequacy of the common law in protecting a general right to privacy has led to the adoption of a number of provincial statutes which create an invasion of privacy tort, and the importance of these in potentially protecting the privacy of homosexual persons is examined. The recognition of a general right to privacy under the Quebec Civil Code and its reinforcement by provisions in the Quebec Charter of Rights and Freedoms completes the analysis of civil remedies for breach of privacy in Canada. For comparative purposes, the development of the « private facts tort » in the American legal system is explored and commented. Informational privacy as it relates to the collection, storage and use of personal information by governments constitutes the focus of part 3 of this paper. It assesses the dangers inherent in the use and storage of personal information by governments in both Canada and the U.S.A. The recognition of the potential for abuse has resulted in the adoption of Privacy Acts in both countries at the federal level and, with respect to Canada, in the province of Quebec. Such legislation seeks to answer the twin preoccupations of when government institutions are justified in collecting and using personal information and when they are justified in disclosing it. These questions are of considerable importance to homosexual persons and this is emphasized in the analysis. Views on the relationship between privacy and social tolerance are offered in the conclusion to the paper.

Modern medicine is evolving at a tremendous speed. On a daily basis, we learn about new treatments, drugs, medical devices, and diagnoses. Both established technology companies and start-ups focus on health-related products and services in competition with traditional healthcare businesses. Telemedicine and electronic health records have the potential to improve the effectiveness of treatments significantly. Progress in the medical field depends above all on data, specifically health information. Physicians, researchers, and developers need health information to help patients by improving diagnoses, customizing treatments and finding new cures. Yet law and policymakers are currently more focused on the fact that health information can also be used to harm individuals. Even after the outbreak of the COVID-19 pandemic (which occurred after the manuscript for this article was largely finalized), the California Attorney General Becera made a point of announcing that he will not delay enforcement of the California Consumer Privacy Act (“CCPA”), which his office estimated imposes a $55 billion cost (approximately 1.8% of California Gross State Product) for initial compliance, not including costs of ongoing compliance, responses to data subject requests, and litigation. Risks resulting from health information processing are very real. Contact tracing and quarantines in response to SARS, MERS, and COVID-19 outbreaks curb civil liberties with similar effects to law enforcement investigations, arrests, and imprisonment. Even outside the unusual circumstances of a global pandemic, employers or insurance companies may disfavor individuals with pre-existing health conditions in connections with job offers and promotions as well as coverage and eligibility decisions. Some diseases carry a negative stigma in social circumstances. To reduce the risks of such harms and protect individual dignity, governments around the world regulate the collection, use, and sharing of health information with ever-stricter laws. European countries have generally prohibited the processing of personal data, subject to limited exceptions, for which companies have to identify and then document or apply. The General Data Protection Regulation (“GDPR”) that took effect in 2018 confirms and amplifies a rigid regulatory regime that was first introduced in the German State Hessen in 1970 and demands that organizations minimize the amount of data they collect, use, share, and retain. Healthcare and healthtech organizations have struggled to comply with this regime and have found EU data protection laws fundamentally hostile to data-driven progress in medicine. The United States, on the other hand, has traditionally relied on sector- and harm-specific laws to protect privacy, including data privacy and security rules under the federal Health Insurance Portability and Accountability Act (“HIPAA”) and numerous state laws including the Confidentiality of Medical Information Act (“CMIA”) in California, which specifically address the collection and use of health information. So long as organizations observe the specific restrictions and prohibitions in sector-specific privacy laws, they may collect, use, and share health information. As a default rule in the United States, businesses are generally permitted to process personal information, including health information. Yet, recently, extremely broad and complex privacy laws have been proposed or enacted in some states, including the California Consumer Privacy Act of 2018 (“CCPA”), which have a potential to render compliance with data privacy laws impractical for most businesses, including those in the healthcare and healthtech sectors. Meanwhile, the People’s Republic of China is encouraging and incentivizing data-driven research and development by Chinese companies, including in the healthcare sector. Data-related legislation is focused on cybersecurity and securing access to data for Chinese government agencies and much less on individual privacy interests. In Europe and the United States, the political pendulum has swung too far in the direction of ever more rigid data regulation and privacy laws, at the expense of potential benefits through medical progress. This is literally unhealthy. Governments, businesses, and other organizations need to collect, use and share more personal health information, not less. The potential benefits of health data processing far outweigh privacy risks, which can be better tackled by harm-specific laws. If discrimination by employers and insurance companies is a concern, then lawmakers and law enforcement agencies need to focus on anti-discrimination rules for employers and insurance companies - not prohibit or restrict the processing of personal data, which does not per se harm anyone. The notion of only allowing data processing under specific conditions leads to a significant hindrance of medical progress by slowing down treatments, referrals, research, and development. It also prevents the use of medical data as a tool for averting dangers for the public good. Data “anonymization” and requirements for specific consent based on overly detailed privacy notices do not protect patient privacy effectively and unnecessarily complicate the processing of health data for medical purposes. Property rights to personal data offer no solutions. Even if individuals - not companies creating databases - were granted property rights to their own data originally, this would not ultimately benefit individuals. Given that transfer and exclusion rights are at the core of property regimes, data property rights would threaten information freedom and privacy alike: after an individual sells her data, the buyer and new owner could exercise his data property rights to enjoin her and her friends and family from continued use of her personal data. Physicians, researchers, and developers would not benefit either; they would have to deal with property rights in addition to privacy and medical confidentiality requirements. Instead of overregulating data processing or creating new property rights in data, lawmakers should require and incentivize organizations to earn and maintain the trust of patients and other data subjects and penalize organizations that use data in specifically prohibited ways to harm individuals. Electronic health records, improved notice and consent mechanisms, and clear legal frameworks will promote medical progress, reduce risks of human error, lower costs, and make data processing and sharing more reliable. We need fewer laws like the GDPR or the CCPA that discourage organizations from collecting, using, retaining, and sharing personal information. Physicians, researchers, developers, drug companies, medical device manufacturers and governments urgently need better and increased access to personal health information. The future of medicine offers enormous opportunities. It depends on trust and healthy data protection. Some degree of data regulation is necessary, but the dose makes the poison. Laws that require or intend to promote the minimization of data collection, use, and sharing may end up killing more patients than hospital germs. In this article, I promote a view that is decidedly different from that supported by the vast majority of privacy scholars, politicians, the media, and the broader zeitgeist in Europe and the United States. I am arguing for a healthier balance between data access and data protection needs in the interest of patients’ health and privacy. I strive to identify ways to protect health data privacy without excessively hindering healthcare and medical progress. After an introduction (I), I examine current approaches to data protection regulation, privacy law, and the protection of patient confidentiality (II), risks associated with the processing of health data (III), needs to protect patient confidence (IV), risks for healthcare and medical progress (V), and possible solutions (VI). I conclude with an outlook and call for healthier approaches to data protection (VII).

Although the federal Constitution of the United States does not expressly recognize a «right to privacy», however, the Supreme Court, over a long and gradual case law, has considered it implicit in the guarantees of the First, Fourth, Fifth, Ninth and Fourteenth Amendments. Therefore, in the American constitutional system the right to privacy is a broad concept, which is set along more than a century to progressively delimit those areas of the private sphere which tend to preserve those interests of solitude, sanctuary, autonomy, individuality, personal development, freedom of choice in personal matters, control of personal information, as well as the essential substrate of the inviolable human dignity. These essential individual interests contribute to the formation of an active and participatory citizenship, constituting thus the right to privacy a fundamental legal interest for the very existence of the democratic system.Aunque la Constitución federal de los Estados Unidos no reconoce expresamente un «derecho a la privacidad », sin embargo, el Tribunal Supremo, a lo largo de una extensa y gradual jurisprudencia, lo ha considerado implícito en las garantías de la Primera, Cuarta, Quinta, Novena y Decimocuarta Enmiendas. Por tanto, en el sistema constitucional norteamericano el derecho a la privacidad es un concepto amplio, que se ha configurado a lo largo de más de un siglo al delimitarse progresivamente aquellos ámbitos de la esfera privada que tienden a preservar esos intereses de soledad, secreto, autonomía, individualidad, desarrollo de la personalidad, libertad de elección en asuntos personales, control de la información personal, así como del sustrato esencial de la inviolable dignidad humana. Intereses individuales de carácter esencial que coadyuvan a la formación de una ciudadanía activa y participativa, constituyendo así el derecho a la privacidad un bien jurídico fundamental para la existencia misma del sistema democrático.

The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process for resolving agency-contractor disputes in light of the growing complexities and importance of Government procurement programs. In introducing the bill, its primary sponsor underscored the need for an efficient adjudicatory process in which both Government agencies and the contracting industries had confidence: One cannot dispute the almost universal expressions of industry and the practicing bar that the system needs change. A good remedies system is a major element in good procurement, and a good system depends not only on fairness and justice, but also on whether the people who are subject to the system believe it is fair and just. In some respects, the CDA fell short of providing a comprehensive framework for Government contract dispute resolution and its stated aim to “provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.” In particular, the Act did not prescribe any period of time for a party to submit an administrative claim for monetary or other relief after occurrence of the breach or other injury. After sixteen years and many complaints from both Government agencies and contractors about dealing with stale claims, Congress finally adopted a CDA limitations period as part of the Federal Acquisition Streamlining Act of 1994 (“FASA”). That statute of limitations, now codified at 41 U.S.C. §7103(a) (4), provides: Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. Decisions by BCAs and Federal Circuit courts under the CDA statute of limitations were relatively rare in the several years following the amendment. Since the early 2010s, however, the number of cases has skyrocketed. This spike in limitations disputes undoubtedly is attributable to the massive increase in military procurement following September 11, including unprecedented spending for goods and services in Afghanistan, Iraq, and other conflict zones. The sheer volume of defense contracts and contractual activity often made it difficult for the parties to recognize and submit claims within six years of the occurrence of the underlying facts. In a relatively short period of time, the tribunals with jurisdiction over defense contract litigation had to decide a large number of limitations disputes with little guidance from direct precedent or legislative or regulatory history. These circumstances have led to case law that is not always consistent in analysis or reconcilable in outcome. Part I of this Article provides an overview of the architecture and key features of the CDA. Part II examines the salient legislative and regulatory history surrounding the adoption of the CDA statute of limitations. Part III discusses when a CDA claim “accrues” and triggers the six-year time period for submitting a claim. In Part IV, we review some of the major issues that arise under the statute in significant and recurrent types of contractor-agency disputes. Part V concludes with a brief evaluation of whether the CDA statute measures up to the “long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations.” Increasing litigation about limitations periods are challenging CDA tribunals to develop coherent and consistent criteria for parties to determine when the six-year period begins to run on their potential claims. Arguably, the trial judges have made that challenge more difficult by attempting to impose precedent under the Tucker Act’s non- discovery-accrual standard on FAR 31.201’s “discovery” rule language. That challenge has been compounded by a general tendency of the BCAs and COFCs to find that claims do not accrue until the claimant possesses the information on which the claim is based. It is reasonable to conclude that the decisional law has not matured to the ideal, and perhaps, idealistic, state of consisting of “rules ensuring fair and predictable enforcement of statutes of limitations.” It may also be observed that, despite the FAR Council’s express intent and “knew or should have known” definition of “accrual” in FAR 33.201, the decisional law to date has not developed or applied typical discovery rule analysis in examining the facts of the cases or in judgments whether claims are timely or untimely. With rare exception, the decisions have not dismissed as untimely claims based on when a claimant “should have known” or been aware of the relevant facts where the claimant did not have actual knowledge or possess the information showing that it had a claim. As a result, the precedent offers virtually no guidance on issues traditionally fundamental to a “reasonably should have learned” analysis, which include the following: (1) What information is sufficient to put a claimant on “notice”? (2) Does “notice” itself trigger the period (as Gray suggests), or does the statute initiate when a diligent claimant discovers the facts, or reasonably would have discovered the facts? (3) When and under what circumstances does a claimant have an affirmative duty to make a reasonable inquiry aimed towards “discovery” of potential claims? (4) When and under what circumstances may a claimant rely on the other party’s contractual duties to provide information in deter- mining the nature and extent of any “diligence” expected of the claimant? On a more fundamental level, however, the cases have never ad- dressed whether the FAR’s discovery rule definition of “accrual” appropriately serves as controlling over the definition of the otherwise undefined term “accrual” in section 7103(4)(a) of the CDA. The FAR Council undertook to define the word “accrue” in Section 4(a) pursuant to its general authority to promulgate regulations “as may be necessary to implement this Act,” and not in response to any specific delegation. The failure to examine whether the FAR Council’s adoption of its definition of “accrue” is sufficient under the recent Supreme Court decision relating to proper construction of statutory limitations provisions and, separately, deference to federal agencies in implementing regulations, raises questions of whether any “discovery rule” should apply in CDA statute of limitations cases. In several recent cases, the Supreme Court has sent a strong signal that the courts should not “graft” a “discovery rule” on the term “accrues” or the like in a federal statute of limitations absent “textual, historical, or equitable reasons” to do so. In Gabelli v. SEC, the SEC in 2008 filed a civil enforcement action against defendants for securities law violations between 1999 and 2002 and sought civil penalties, which are subject to a statute of limitations that require an action to be brought “within five years from the date when the claim first accrued.” The SEC argued that the statute is subject to a “discovery rule,” delaying accrual until it discovered or “could have been discovered with reasonable diligence.” The Court rejected that argument: “In common parlance a right accrues when it comes into existence . . . .” . . . Thus the “standard rule” is that a claim accrues “when the plaintiff has a complete and present cause of action.” . . . That rule has governed since the 1830’s when the predecessor to §2462 was enacted. . . . And that definition appears in dictionaries from the 19th century up until today. See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009) (defining “accrue” as “[t]o come into existence as an enforce- able claim or right”). The Court added: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; other- wise the court would make the law instead of administering it.’” At a minimum, the CDA forums will need to address, if and when any litigant raises the question, whether “accrues” in section 7103(a) (4) (A) means (1) when the claimant “knew or should have known” of the cause, or (2) in light of Gabelli and other recent precedent, when the claimant “has a complete and present cause of action” regardless of the claimant’s state of mind. In this regard, while the FAR Council and the CDA forums have relied significantly on Tucker Act precedent, neither appears to have considered that, as in the CDA, the Tucker Act does not define “accrue,” and since its enactment, the federal courts consistently have construed “accrue” in the Tucker Act to mean the date when “when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” The Supreme Court, moreover, recently clarified that under the Chevron deference analysis, “deference is not due [a regulatory definition of a statutory term] unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity. . . . Where . . . the canons supply an answer, ‘Chevron leaves the stage.’” Notably, there is no indication in the record that the FAR Council determined that the CDA statute’s use of “accrue” was “ambiguous,” or adopted its “discovery” definition standard to clarify an ambiguity. On the contrary, it noted the “discovery requirement must remain,” notwithstanding little support and much objection among commentators, because “many pricing defect cases have their original events at the beginning of the contract or on contract award, but often cannot be discovered by the Government until years later.” The CDA forum’s “discovery” rule, and the CDA forum’s default use of that definition, may be vulnerable in light of Gabelli, a growing hostility to Chevron deference, and the regulatory record.

To improve online learning pedagogy within the field of paralegal education, this study investigated how paralegal students and paralegal instructors perceived the effectiveness of synchronous and asynchronous online paralegal courses. This study intended to inform paralegal instructors and course developers how to better design, deliver, and evaluate effective online course instruction in the field of paralegal studies.Survey results were analyzed using independent samples t-test and correlational analysis, and indicated that overall, paralegal students and paralegal instructors positively perceived synchronous and asynchronous online paralegal courses. Paralegal instructors reported statistically significant higher perceptions than paralegal students: (1) of instructional design and course content in synchronous online paralegal courses; and (2) of technical assistance, communication, and course content in asynchronous online paralegal courses. Instructors also reported higher perceptions of the effectiveness of universal design, online instructional design, and course content in synchronous online paralegal courses than in asynchronous online paralegal courses. Paralegal students reported higher perceptions of asynchronous online paralegal course effectiveness regarding universal design than paralegal instructors. No statistically significant differences existed between paralegal students’ perceptions of the effectiveness of synchronous and asynchronous online paralegal courses. A strong, negative relationship existed between paralegal students’ age and their perceptions of effective synchronous paralegal courses, which were statistically and practically significant. Lastly, this study provided practical applicability and opportunities for future research. Akyol, Z., & Garrison, D. R. (2008). 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Globalization and the growing mountain of electronically stored information ("ESI") will inevitably lead to an increase in discovery requests for ESI located abroad. But no consistent methodology exists for United States courts to evaluate whether discovery of ESI abroad is appropriate, and if so, what the consequences are for failure to comply with a discovery order. As international commerce depends on "the ability of merchants to predict the likely consequences of their conduct in overseas markets,"1 United States courts need to apply a consistent standard to decisions involving the discovery of international ESI. This paper reviews existing law related to international discovery and electronic discovery ("e-discovery") and proposes a blended approach to be considered by courts to evaluate discovery of international ESI.

In its preamble, The Western Australian Charter of Multiculturalism (WA) commits the state to becoming: “A society in which respect for mutual difference is accompanied by equality of opportunity within a framework of democratic citizenship”. One of the principles of multiculturalism, as enunciated in the Charter, is “equality of opportunity for all members of society to achieve their full potential in a free and democratic society where every individual is equal before and under the law”. An important element of this principle is the “equality of opportunity … to achieve … full potential”. The implication here is that those who start from a position of disadvantage when it comes to achieving that potential deserve more than ‘equal’ treatment. Implicitly, equality can be achieved only through the recognition of and response to differential needs and according to the likelihood of achieving full potential. This is encapsulated in Kymlicka’s argument that neutrality is “hopelessly inadequate once we look at the diversity of cultural membership which exists in contemporary liberal democracies” (903). Yet such a potential commitment to differential support might seem unequal to some, where equality is constructed as the same or equal treatment regardless of differing circumstances. Until the past half-century or more, this problematic has been a hotly-contested element of the struggle for Civil Rights for African-Americans in the United States, especially as these rights related to educational opportunity during the years of racial segregation. For some, providing resources to achieve equal outcomes (rather than be committed to equal inputs) may appear to undermine the very ethos of liberal democracy. In Australia, this perspective has been the central argument of Pauline Hanson and her supporters who denounce programs designed as measures to achieve equality for specific disadvantaged groups; including Indigenous Australians and humanitarian refugees. Nevertheless, equality for all on all grounds of legally-accepted difference: gender, race, age, family status, sexual orientation, political conviction, to name a few; is often held as the hallmark of progressive liberal societies such as Australia. In the matter of religious freedoms the situation seems much less complex. All that is required for religious equality, it seems, is to define religion as a private matter – carried out, as it were, between consenting parties away from the public sphere. This necessitates, effectively, the separation of state and religion. This separation of religious belief from the apparatus of the state is referred to as ‘secularism’ and it tends to be regarded as a cornerstone of a liberal democracy, given the general assumption that secularism is a necessary precursor to equal treatment of and respect for different religious beliefs, and the association of secularism with the Western project of the Enlightenment when liberty, equality and science replaced religion and superstition. By this token, western nations committed to equality are also committed to being liberal, democratic and secular in nature; and it is a matter of state indifference as to which religious faith a citizen embraces – Wiccan, Christian, Judaism, etc – if any. Historically, and arguably more so in the past decade, the terms ‘democratic’, ‘secular’, ‘liberal’ and ‘equal’ have all been used to inscribe characteristics of the collective ‘West’. Individuals and states whom the West ascribe as ‘other’ are therefore either or all of: not democratic; not liberal; or not secular – and failing any one of these characteristics (for any country other than Britain, with its parliamentary-established Church of England, headed by the Queen as Supreme Governor) means that that country certainly does not espouse equality. The West and the ‘Other’ in Popular Discourse The constructed polarisation between the free, secular and democratic West that values equality; and the oppressive ‘other’ that perpetuates theocracies, religious discrimination and – at the ultimate – human rights abuses, is a common theme in much of the West’s media and popular discourse on Islam. The same themes are also applied in some measure to Muslims in Australia, in particular to constructions of the rights of Muslim women in Australia. Typically, Muslim women’s dress is deemed by some secular Australians to be a symbol of religious subjugation, rather than of free choice. Arguably, this polemic has come to the fore since the terrorist attacks on the United States in September 2001. However, as Aly and Walker note, the comparisons between the West and the ‘other’ are historically constructed and inherited (Said) and have tended latterly to focus western attention on the role and status of Muslim women as evidence of the West’s progression comparative to its antithesis, Eastern oppression. An examination of studies of the United States media coverage of the September 11 attacks, and the ensuing ‘war on terror’, reveals some common media constructions around good versus evil. There is no equal status between these. Good must necessarily triumph. In the media coverage, the evil ‘other’ is Islamic terrorism, personified by Osama bin Laden. Part of the justification for the war on terror is a perception that the West, as a force for good in this world, must battle evil and protect freedom and democracy (Erjavec and Volcic): to do otherwise is to allow the terror of the ‘other’ to seep into western lives. The war on terror becomes the defence of the west, and hence the defence of equality and freedom. A commitment to equality entails a defeat of all things constructed as denying the rights of people to be equal. Hutcheson, Domke, Billeaudeaux and Garland analysed the range of discourses evident in Time and Newsweek magazines in the five weeks following September 11 and found that journalists replicated themes of national identity present in the communication strategies of US leaders and elites. The political and media response to the threat of the evil ‘other’ is to create a monolithic appeal to liberal values which are constructed as being a monopoly of the ‘free’ West. A brief look at just a few instances of public communication by US political leaders confirms Hutcheson et al.’s contention that the official construction of the 2001 attacks invoked discourses of good and evil reminiscent of the Cold War. In reference to the actions of the four teams of plane hijackers, US president George W Bush opened his Address to the Nation on the evening of September 11: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts” (“Statement by the President in His Address to the Nation”). After enjoining Americans to recite Psalm 23 in prayer for the victims and their families, President Bush ended his address with a clear message of national unity and a further reference to the battle between good and evil: “This is a day when all Americans from every walk of life unite in our resolve for justice and peace. America has stood down enemies before, and we will do so this time. None of us will ever forget this day. Yet, we go forward to defend freedom and all that is good and just in our world” (“Statement by the President in His Address to the Nation”). In his address to the joint houses of Congress shortly after September 11, President Bush implicated not just the United States in this fight against evil, but the entire international community stating: “This is the world’s fight. This is civilisation’s fight” (cited by Brown 295). Addressing the California Business Association a month later, in October 2001, Bush reiterated the notion of the United States as the leading nation in the moral fight against evil, and identified this as a possible reason for the attack: “This great state is known for its diversity – people of all races, all religions, and all nationalities. They’ve come here to live a better life, to find freedom, to live in peace and security, with tolerance and with justice. When the terrorists attacked America, this is what they attacked”. While the US media framed the events of September 11 as an attack on the values of democracy and liberalism as these are embodied in US democratic traditions, work by scholars analysing the Australian media’s representation of the attacks suggested that this perspective was echoed and internationalised for an Australian audience. Green asserts that global media coverage of the attacks positioned the global audience, including Australians, as ‘American’. The localisation of the discourses of patriotism and national identity for Australian audiences has mainly been attributed to the media’s use of the good versus evil frame that constructed the West as good, virtuous and moral and invited Australian audiences to subscribe to this argument as members of a shared Western democratic identity (Osuri and Banerjee). Further, where the ‘we’ are defenders of justice, equality and the rule of law; the opposing ‘others’ are necessarily barbaric. Secularism and the Muslim Diaspora Secularism is a historically laden term that has been harnessed to symbolise the emancipation of social life from the forced imposition of religious doctrine. The struggle between the essentially voluntary and private demands of religion, and the enjoyment of a public social life distinct from religious obligations, is historically entrenched in the cultural identities of many modern Western societies (Dallmayr). The concept of religious freedom in the West has evolved into a principle based on the bifurcation of life into the objective public sphere and the subjective private sphere within which individuals are free to practice their religion of choice (Yousif), or no religion at all. Secularism, then, is contingent on the maintenance of a separation between the public (religion-free) and the private or non- public (which may include religion). The debate regarding the feasibility or lack thereof of maintaining this separation has been a matter of concern for democratic theorists for some time, and has been made somewhat more complicated with the growing presence of religious diasporas in liberal democratic states (Charney). In fact, secularism is often cited as a precondition for the existence of religious pluralism. By removing religion from the public domain of the state, religious freedom, in so far as it constitutes the ability of an individual to freely choose which religion, if any, to practice, is deemed to be ensured. However, as Yousif notes, the Western conception of religious freedom is based on a narrow notion of religion as a personal matter, possibly a private emotional response to the idea of God, separate from the rational aspects of life which reside in the public domain. Arguably, religion is conceived of as recognising (or creating) a supernatural dimension to life that involves faith and belief, and the suspension of rational thought. This Western notion of religion as separate from the state, dividing the private from the public sphere, is constructed as a necessary basis for the liberal democratic commitment to secularism, and the notional equality of all religions, or none. Rawls questioned how people with conflicting political views and ideologies can freely endorse a common political regime in secular nations. The answer, he posits, lies in the conception of justice as a mechanism to regulate society independently of plural (and often opposing) religious or political conceptions. Thus, secularism can be constructed as an indicator of pluralism and justice; and political reason becomes the “common currency of debate in a pluralist society” (Charney 7). A corollary of this is that religious minorities must learn to use the language of political reason to represent and articulate their views and opinions in the public context, especially when talking with non-religious others. This imposes a need for religious minorities to support their views and opinions with political reason that appeals to the community at large as citizens, and not just to members of the minority religion concerned. The common ground becomes one of secularism, in which all speakers are deemed to be indifferent as to the (private) claims of religion upon believers. Minority religious groups, such as fundamentalist Mormons, invoke secular language of moral tolerance and civil rights to be acknowledged by the state, and to carry out their door-to-door ‘information’ evangelisation/campaigns. Right wing fundamentalist Christian groups and Catholics opposed to abortion couch their views in terms of an extension of the secular right to life, and in terms of the human rights and civil liberties of the yet-to-be-born. In doing this, these religious groups express an acceptance of the plurality of the liberal state and engage in debates in the public sphere through the language of political values and political principles of the liberal democratic state. The same principles do not apply within their own associations and communities where the language of the private religious realm prevails, and indeed is expected. This embracing of a political rhetoric for discussions of religion in the public sphere presents a dilemma for the Muslim diaspora in liberal democratic states. For many Muslims, religion is a complete way of life, incapable of compartmentalisation. The narrow Western concept of religious expression as a private matter is somewhat alien to Muslims who are either unable or unwilling to separate their religious needs from their needs as citizens of the nation state. Problems become apparent when religious needs challenge what seems to be publicly acceptable, and conflicts occur between what the state perceives to be matters of rational state interest and what Muslims perceive to be matters of religious identity. Muslim women’s groups in Western Australia for example have for some years discussed the desirability of a Sharia divorce court which would enable Muslims to obtain divorces according to Islamic law. It should be noted here that not all Muslims agree with the need for such a court and many – probably a majority – are satisfied with the existing processes that allow Muslim men and women to obtain a divorce through the Australian family court. For some Muslims however, this secular process does not satisfy their religious needs and it is perceived as having an adverse impact on their ability to adhere to their faith. A similar situation pertains to divorced Catholics who, according to a strict interpretation of their doctrine, are unable to take the Eucharist if they form a subsequent relationship (even if married according to the state), unless their prior marriage has been annulled by the Catholic Church or their previous partner has died. Whereas divorce is considered by the state as a public and legal concern, for some Muslims and others it is undeniably a religious matter. The suggestion by the Anglican Communion’s Archbishop of Canterbury, Dr Rowan Williams, that the adoption of certain aspects of Sharia law regarding marital disputes or financial matters is ultimately unavoidable, sparked controversy in Britain and in Australia. Attempts by some Australian Muslim scholars to elaborate on Dr Williams’s suggestions, such as an article by Anisa Buckley in The Herald Sun (Buckley), drew responses that, typically, called for Muslims to ‘go home’. A common theme in these responses is that proponents of Sharia law (and Islam in general) do not share a commitment to the Australian values of freedom and equality. The following excerpts from the online pages of Herald Sun Readers’ Comments (Herald Sun) demonstrate this perception: “These people come to Australia for freedoms they have never experienced before and to escape repression which is generally brought about by such ‘laws’ as Sharia! How very dare they even think that this would be an option. Go home if you want such a regime. Such an insult to want to come over to this country on our very goodwill and our humanity and want to change our systems and ways. Simply, No!” Posted 1:58am February 12, 2008 “Under our English derived common law statutes, the law is supposed to protect an individual’s rights to life, liberty and property. That is the basis of democracy in Australia and most other western nations. Sharia law does not adequately share these philosophies and principles, thus it is incompatible with our system of law.” Posted 12:55am February 11, 2008 “Incorporating religious laws in the secular legal system is just plain wrong. No fundamentalist religion (Islam in particular) is compatible with a liberal-democracy.” Posted 2:23pm February 10, 2008 “It should not be allowed in Australia the Muslims come her for a better life and we give them that opportunity but they still believe in covering them selfs why do they even come to Australia for when they don’t follow owe [our] rules but if we went to there [their] country we have to cover owe selfs [sic]” Posted 11:28am February 10, 2008 Conflicts similar to this one – over any overt or non-private religious practice in Australia – may also be observed in public debates concerning the wearing of traditional Islamic dress; the slaughter of animals for consumption; Islamic burial rites, and other religious practices which cannot be confined to the private realm. Such conflicts highlight the inability of the rational liberal approach to solve all controversies arising from religious traditions that enjoin a broader world view than merely private spirituality. In order to adhere to the liberal reduction of religion to the private sphere, Muslims in the West must negotiate some religious practices that are constructed as being at odds with the rational state and practice a form of Islam that is consistent with secularism. At the extreme, this Western-acceptable form is what the Australian government has termed ‘moderate Islam’. The implication here is that, for the state, ‘non-moderate Islam’ – Islam that pervades the public realm – is just a descriptor away from ‘extreme’. The divide between Christianity and Islam has been historically played out in European Christendom as a refusal to recognise Islam as a world religion, preferring instead to classify it according to race or ethnicity: a Moorish tendency, perhaps. The secular state prefers to engage with Muslims as an ethnic, linguistic or cultural group or groups (Yousif). Thus, in order to engage with the state as political citizens, Muslims must find ways to present their needs that meet the expectations of the state – ways that do not use their religious identity as a frame of reference. They can do this by utilizing the language of political reason in the public domain or by framing their needs, views and opinions exclusively in terms of their ethnic or cultural identity with no reference to their shared faith. Neither option is ideal, or indeed even viable. This is partly because many Muslims find it difficult if not impossible to separate their religious needs from their needs as political citizens; and also because the prevailing perception of Muslims in the media and public arena is constructed on the basis of an understanding of Islam as a religion that conflicts with the values of liberal democracy. In the media and public arena, little consideration is given to the vast differences that exist among Muslims in Australia, not only in terms of ethnicity and culture, but also in terms of practice and doctrine (Shia or Sunni). The dominant construction of Muslims in the Australian popular media is of religious purists committed to annihilating liberal, secular governments and replacing them with anti-modernist theocratic regimes (Brasted). It becomes a talking point for some, for example, to realise that there are international campaigns to recognise Gay Muslims’ rights within their faith (ABC) (in the same way that there are campaigns to recognise Gay Christians as full members of their churches and denominations and equally able to hold high office, as followers of the Anglican Communion will appreciate). Secularism, Preference and Equality Modood asserts that the extent to which a minority religious community can fully participate in the public and political life of the secular nation state is contingent on the extent to which religion is the primary marker of identity. “It may well be the case therefore that if a faith is the primary identity of any community then that community cannot fully identify with and participate in a polity to the extent that it privileges a rival faith. Or privileges secularism” (60). Modood is not saying here that Islam has to be privileged in order for Muslims to participate fully in the polity; but that no other religion, nor secularism, should be so privileged. None should be first, or last, among equals. For such a situation to occur, Islam would have to be equally acceptable both with other religions and with secularism. Following a 2006 address by the former treasurer (and self-avowed Christian) Peter Costello to the Sydney Institute, in which Costello suggested that people who feel a dual claim from both Islamic law and Australian law should be stripped of their citizenship (Costello), the former Prime Minister, John Howard, affirmed what he considers to be Australia’s primary identity when he stated that ‘Australia’s core set of values flowed from its Anglo Saxon identity’ and that any one who did not embrace those values should not be allowed into the country (Humphries). The (then) Prime Minister’s statement is an unequivocal assertion of the privileged position of the Anglo Saxon tradition in Australia, a tradition with which many Muslims and others in Australia find it difficult to identify. Conclusion Religious identity is increasingly becoming the identity of choice for Muslims in Australia, partly because it is perceived that their faith is under attack and that it needs defending (Aly). They construct the defence of their faith as a choice and an obligation; but also as a right that they have under Australian law as equal citizens in a secular state (Aly and Green). Australian Muslims who have no difficulty in reconciling their core Australianness with their deep faith take it as a responsibility to live their lives in ways that model the reconciliation of each identity – civil and religious – with the other. In this respect, the political call to Australian Muslims to embrace a ‘moderate Islam’, where this is seen as an Islam without a public or political dimension, is constructed as treating their faith as less than equal. Religious identity is generally deemed to have no place in the liberal democratic model, particularly where that religion is constructed to be at odds with the principles and values of liberal democracy, namely tolerance and adherence to the rule of law. Indeed, it is as if the national commitment to secularism rules as out-of-bounds any identity that is grounded in religion, giving precedence instead to accepting and negotiating cultural and ethnic differences. Religion becomes a taboo topic in these terms, an affront against secularism and the values of the Enlightenment that include liberty and equality. In these circumstances, it is not the case that all religions are equally ignored in a secular framework. What is the case is that the secular framework has been constructed as a way of ‘privatising’ one religion, Christianity; leaving others – including Islam – as having nowhere to go. Islam thus becomes constructed as less than equal since it appears that, unlike Christians, Muslims are not willing to play the secular game. In fact, Muslims are puzzling over how they can play the secular game, and why they should play the secular game, given that – as is the case with Christians – they see no contradiction in performing ‘good Muslim’ and ‘good Australian’, if given an equal chance to embrace both. Acknowledgements This paper is based on the findings of an Australian Research Council Discovery Project, 2005-7, involving 10 focus groups and 60 in-depth interviews. The authors wish to acknowledge the participation and contributions of WA community members. References ABC. “A Jihad for Love.” Life Matters (Radio National), 21 Feb. 2008. 11 March 2008. < http://www.abc.net.au/rn/lifematters/stories/2008/2167874.htm >.Aly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40.Aly, Anne, and Lelia Green. “‘Moderate Islam’: Defining the Good Citizen.” M/C Journal 10.6/11.1 (2008). 13 April 2008 < http://journal.media-culture.org.au/0804/08aly-green.php >.Aly, Anne, and David Walker. “Veiled Threats: Recurrent Anxieties in Australia.” Journal of Muslim Minority Affairs 27.2 (2007): 203-14.Brasted, Howard.V. “Contested Representations in Historical Perspective: Images of Islam and the Australian Press 1950-2000.” Muslim Communities in Australia. Eds. Abdullah Saeed and Akbarzadeh, Shahram. Sydney: University of New South Wales Press, 2001. 206-28.Brown, Chris. “Narratives of Religion, Civilization and Modernity.” Worlds in Collision: Terror and the Future of Global Order. Eds. Ken Booth and Tim Dunne. New York: Palgrave Macmillan, 2002. 293-324. Buckley, Anisa. “Should We Allow Sharia Law?” Sunday Herald Sun 10 Feb. 2008. 8 March 2008 < http://www.news.com.au/heraldsun/story/0,21985,231869735000117,00.html >.Bush, George. W. “President Outlines War Effort: Remarks by the President at the California Business Association Breakfast.” California Business Association 2001. 17 April 2007 < http://www.whitehouse.gov/news/releases/2001/10/20011017-15.html >.———. “Statement by the President in His Address to the Nation”. Washington, 2001. 17 April 2007 < http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html >.Charney, Evan. “Political Liberalism, Deliberative Democracy, and the Public Sphere.” The American Political Science Review 92.1 (1998): 97- 111.Costello, Peter. “Worth Promoting, Worth Defending: Australian Citizenship, What It Means and How to Nurture It.” Address to the Sydney Institute, 23 February 2006. 24 Apr. 2008 < http://www.treasurer.gov.au/DisplayDocs.aspx?doc=speeches/2006/004.htm &pageID=05&min=phc&Year=2006&DocType=1 >.Dallmayr, Fred. “Rethinking Secularism.” The Review of Politics 61.4 (1999): 715-36.Erjavec, Karmen, and Zala Volcic. “‘War on Terrorism’ as Discursive Battleground: Serbian Recontextualisation of G. W. Bush’s Discourse.” Discourse and Society 18 (2007): 123- 37.Green, Lelia. “Did the World Really Change on 9/11?” Australian Journal of Communication 29.2 (2002): 1-14.Herald Sun. “Readers’ Comments: Should We Allow Sharia Law?” Herald Sun Online Feb. 2008. 8 March 2008. < http://www.news.com.au/heraldsun/comments/0,22023,23186973-5000117,00.html >.Humphries, David. “Live Here, Be Australian.” The Sydney Morning Herald 25 Feb. 2006, 1 ed.Hutcheson, John S., David Domke, Andre Billeaudeaux, and Philip Garland. “U.S. National Identity, Political Elites, and Patriotic Press Following September 11.” Political Communication 21.1 (2004): 27-50.Kymlicka, Will. “Liberal Individualism and Liberal Neutrality.” Ethics 99.4 (1989): 883-905.Modood, Tariq. “Establishment, Multiculturalism and British Citizenship.” The Political Quarterly (1994): 53-74.Osuri, Goldie, and Subhabrata B. Banerjee. “White Diasporas: Media Representations of September 11 and the Unbearable Whiteness of Being in Australia.” Social Semiotics 14.2 (2004): 151- 71.Rawls, John. A Theory of Justice. Cambridge: Harvard UP, 1971.Said, Edward. Orientalism. New York: Vintage Books 1978.Western Australian Charter of Multiculturalism. WA: Government of Western Australia, Nov. 2004. 11 March 2008 < http://www.equalopportunity.wa.gov.au/pdf/wa_charter_multiculturalism.pdf >.Yousif, Ahmad. “Islam, Minorities and Religious Freedom: A Challenge to Modern Theory of Pluralism.” Journal of Muslim Minority Affairs 20.1 (2000): 30-43.

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

On the basis of the presentation, analyzing the free doctrine of Zhuang Zhi, the author explains the origin and the rationale for this doctrine as well as the nature of Zhuang Zhi's free philosophy. At the same time, the author also refers to the philosophy of freedom with the doctrine of the rule of law, especially the content of executive limitation to freedom. Keywords: Theory of freedom, Zhuang Zhi, the rule of law. References: [1] Thu Giang, Nguyễn Duy Cần, Cái cười của thánh nhân của, NXB Thanh Niên, Hà Nội, 1999 trang 12.[2] Tư Mã Thiên, Phan Ngọc dịch, Sử Ký Tư¬ Mã Thiên, NXB Văn học, Hà Nội, 2001, trang 301.[3] Trang Tử, “Mộng hồ điệp”, dẫn theo Thu Giang Nguyễn Duy Cần, Sđd, trang 71.[4] Sử Ký Tư Mã Thiên, Sđd, trang 301.[5] Sử Ký Tư Mã Thiên, Sđd, trang 299.[6] Hồ Thích, Nguyễn Văn Dương dịch, Đại cương triết học sử Trung Quốc, NXB Thanh Niên, 1999, trang 105.[7] Thu Giang Nguyễn Duy Cần dịch Lão Tử Đạo Đức Kinh, Thanh Niên, 1999, trang 283.[8] Đại cương triết học sử Trung Quốc, sđd, tr 117.[9] Trang Tử Nam Hoa Kinh, sđd, tr 98 - 100.[10] Cao Xuân Huy, Triết học Phương Đông gợi những điểm nhìn tham chiếu, NXB Văn học, 1995 tr 494. [11] Nguyễn Đăng Dung, Sự hạn chế quyền lực nhà nước, NXB Đại học Quốc gia. 2005,[12] Lê Đình Chân, Luật Hiến pháp và các định chế chính trị, Đại học Luật khoa Sài Gòn, Sài Gòn, 1974, tr265.[13] J. Herbert Muller, Freedom in Western World: From the Dark Ages to the Rise of Democracy, Harper Colophon Books, New York, London, 1963, p275.[14] The Constitution of the United States of America with Explanatory Notes, adapted from The World Book Encyclopedia, International Information Program, Department of State of the U.S, 2004, pg73[15] Trang Tử Nam Hoa Kinh, sđd, tr 59., truy cập ngày 18/12/2018.

On 23 August 2005, John Howard, then Prime Minister, called together Muslim ‘representatives’ from around the nation for a Muslim Summit in response to the London bombings in July of that year. One of the outcomes of the two hour summit was a Statement of Principles committing Muslim communities in Australia to resist radicalisation and pursue a ‘moderate’ Islam. Since then the ill-defined term ‘moderate Muslim’ has been used in both the political and media discourse to refer to a preferred form of Islamic practice that does not challenge the hegemony of the nation state and that is coherent with the principles of secularism. Akbarzadeh and Smith conclude that the terms ‘moderate’ and ‘mainstream’ are used to describe Muslims whom Australians should not fear in contrast to ‘extremists’. Ironically, the policy direction towards regulating the practice of Islam in Australia in favour of a state defined ‘moderate’ Islam signals an attempt by the state to mediate the practice of religion, undermining the ethos of secularism as it is expressed in the Australian Constitution. It also – arguably – impacts upon the citizenship rights of Australian Muslims in so far as citizenship presents not just as a formal set of rights accorded to an individual but also to democratic participation: the ability of citizens to enjoy those rights at a substantive level. Based on the findings of research into how Australian Muslims and members of the broader community are responding to the political and media discourses on terrorism, this article examines the impact of these discourses on how Muslims are practicing citizenship and re-defining an Australian Muslim identity. Free Speech Free speech has been a hallmark of liberal democracies ever since its defence became part of the First Amendment to the United States Constitution. The Australian Constitution does not expressly contain a provision for free speech. The right to free speech in Australia is implied in Australia’s ratification of the United Nations Universal Declaration of Human Rights (UDHR), article 19 of which affirms: Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The ultimate recent endorsement of free speech rights, arguably associated with the radical free speech ‘open platform’ movement of the 1960s at the University of California Berkeley, constructs free speech as essential to human and civil liberties. Its approach has been expressed in terms such as: “I reject and detest XYZ views but will defend to the utmost a person’s right to express them”. An active defence of free speech is based on the observation that, unless held to account, “[Authorities] would grant free speech to those with whom they agree, but not to minorities whom they consider unorthodox or threatening” (“Online Archives of California”). Such minorities, differing from the majority view, do so as a right accorded to citizens. In very challenging circumstances – such as opposing the Cold War operations of the US Senate Anti-American Activities Committee – the free speech movement has been celebrated as holding fast (or embodying a ‘return’) to the true meaning of the American First Amendment. It was in public statements of unpopular and minority views, which opposed those of the majority, that the right to free speech could most non-controvertibly be demonstrated. Some have argued that such rights should be balanced by anti-vilification legislation, by prohibitions upon incitement to violence, and by considerations as to whether the organisation defended by the speaker was banned. In the latter case, there can be problems with excluding the defence of banned organisations from legitimate debate. In the 1970s and 1980s, for example, Sinn Fein was denounced in the UK as the ‘political wing of the IRA’ (the IRA being a banned organisation) and denied a speaking position in many forums, yet has proved to be an important party in the eventual reconciliation of the Northern Ireland divide. In effect, the banning of an organisation is a political act and such acts should best be interrogated through free speech and democratic debate. Arguably, such disputation is a responsibility of an involved citizenry. In general, liberal democracies such as Australia do not hesitate to claim that citizens have a right to free speech and that this is a right worth defending. There is a legitimate expectation by Australians of their rights as citizens to freedom of expression. For some Australian Muslims, however, the appeal to free speech seems a hollow one. Muslim citizens run the risk of being constructed as ‘un-Australian’ when they articulate their concerns or opinions. Calls by some Muslim leaders not to reprint the Danish cartoons depicting images of the Prophet Mohammed for example, met with a broader community backlash and drew responses that, typically, constructed Muslims as a threat to Australian cultural values of freedom and liberty. These kinds of responses to expressions by Australian Muslims of their deeply held convictions are rarely, if ever, interpreted as attempts to curtail Australian Muslims’ rights to free speech. There is a poor fit between what many Australian Muslims believe and what they feel the current climate in Australia allows them to say in the public domain. Positioned as the potential ‘enemy within’ in the evolving media and political discourse post September 11, they have been allocated restricted speaking positions on many subjects from the role and training of their Imams to the right to request Sharia courts (which could operate in parallel with Australian courts in the same way that Catholic divorce/annulment courts do). These social and political restrictions lead them to question whether Muslims enjoy citizenship rights on an equal footing with Australians from the broader community. The following comment from an Australian woman, an Iraqi refugee, made in a research interview demonstrates this: The media say that if you are Australian it means that you enjoy freedom, you enjoy the rights of citizenship. That is the idea of what it means to be Australian, that you do those things. But if you are a Muslim, you are not Australian. You are a people who are dangerous, a people who are suspicious, a people who do not want democracy—all the characteristics that make up terrorists. So yes, there is a difference, a big difference. And it is a feeling all Muslims have, not just me, whether you are at school, at work, and especially if you wear the hijab. (Translated from Arabic by Anne Aly) At the same time, Australian Muslims observe some members of the broader community making strong assertions about Muslims (often based on misunderstanding or misinformation) with very little in the way of censure or rebuke. For example, again in 2005, Liberal backbenchers Sophie Panopoulos and Bronwyn Bishop made an emotive plea for the banning of headscarves in public schools, drawing explicitly on the historically inherited image of Islam as a violent, backward and oppressive ideology that has no place in Western liberal democracy: I fear a frightening Islamic class emerging, supported by a perverse interpretation of the Koran where disenchantment breeds disengagement, where powerful and subversive orthodoxies are inculcated into passionate and impressionable young Muslims, where the Islamic mosque becomes the breeding ground for violence and rejection of Australian law and ideals, where extremists hijack the Islamic faith with their own prescriptive and unbending version of the Koran and where extremist views are given currency and validity … . Why should one section of the community be stuck in the Dark Ages of compliance cloaked under a veil of some distorted form of religious freedom? (Panopoulos) Several studies attest to the fact that, since the terrorist attacks in the United States in September 2001, Islam, and by association Australian Muslims, have been positioned as other in the political and media discourse (see for example Aly). The construct of Muslims as ‘out of place’ (Saniotis) denies them entry and representation in the public sphere: a key requisite for democratic participation according to Habermas (cited in Haas). This notion of a lack of a context for Muslim citizenship in Australian public spheres arises out of the popular construction of ‘Muslim’ and ‘Australian’ as mutually exclusive modes of being. Denied access to public spaces to partake in democratic dialogue as political citizens, Australian Muslims must pursue alternative communicative spaces. Some respond by limiting their expressions to closed spheres of communication – a kind of enforced silence. Others respond by pursuing alternative media discourses that challenge the dominant stereotypes of Muslims in Western media and reinforce majority-world cultural views. Enforced Silence In closed spheres of discussion, Australian Muslims can openly share their perceptions about terrorism, the government and media. Speaking openly in public however, is not common practice and results in forced silence for fear of reprisal or being branded a terrorist: “if we jump up and go ‘oh how dare you say this, rah, rah’, he’ll be like ‘oh he’s going to go off, he’ll blow something up’”. One research participant recalled that when his work colleagues were discussing the September 11 attacks he decided not to partake in the conversation because it “might be taken against me”. The participant made this decision despite the fact that his colleagues were expressing the opinion that United States foreign policy was the likely cause for the attacks—an opinion with which he agreed. This suggests some support for the theory that the fear of social isolation may make Australian Muslims especially anxious or fearful of expressing opinions about terrorism in public discussions (Noelle-Neumann). However, it also suggests that the fear of social isolation for Muslims is not solely related to the expression of minority opinion, as theorised in Noelle-Neumann’s Spiral of Silence . Given that many members of the wider community shared the theory that the attacks on the Pentagon and the World Trade Centre in 2001 may have been a response to American foreign policy, this may well not be a minority view. Nonetheless, Australian Muslims hesitated to embrace it. Saniotis draws attention to the pressure on Australian Muslims to publicly distance themselves from the terrorist attacks of September 11 and to openly denounce the actions of terrorists. The extent to which Muslims were positioned as a threatening other was contingent on their ability to demonstrate that they too participated in the distal responses to the terrorist attacks—initial pity for the sufferer and eventual marginalisation and rejection of the perceived aggressor. Australian Muslims were obliged to declare their loyalty and commitment to Australia’s ally and, in this way, partake in the nationalistic responses to the threat of terrorism. At the same time however, Australian Muslims were positioned as an imagined enemy and a threat to national identity. Australian Muslims were therefore placed in a paradoxical bind- as Australians they were expected to respond as the victims of fear; as Muslims they were positioned as the objects of fear. Even in discussions where their opinions are congruent with the dominant opinion being expressed, Australian Muslims describe themselves as feeling apprehensive or anxious about expressing their opinions because of how these “might be taken”. Pursuing alternative discourses The overriding message from the research project’s Muslim participants was that the media, as a powerful purveyor of public opinion, had inculcated a perception of Muslims as a risk to Australia and Australians: an ‘enemy within’; the potential ‘home grown terrorist’. The daily experience of visibly-different Australian Muslims, however, is that they are more fearing than fear-inspiring. The Aly and Balnaves fear scale indicates that Australian Muslims have twice as many fear indicators as non-Muslims Australians. Disengagement from Western media and media that is seen to be influenced or controlled by the West is widespread among Australian Muslims who increasingly argue that the media institutions are motivated by an agenda that includes profit and the perpetuation of a negative stereotype of Muslims both in Australia and around the globe, particularly in relation to Middle Eastern affairs. The negative stereotypes of Muslims in the Australian media have inculcated a sense of victimhood which Muslims in Australia have used as the basis for a reconstruction of their identity and the creation of alternative narratives of belonging (Aly). Central to the notion of identity among Australian Muslims is a sense of having their citizenship rights curtailed by virtue of their faith: of being included in a general Western dismissal of Muslims’ rights and experiences. As one interviewee said: If you look at the Channel Al Jazeera for example, it’s a channel but they aren’t making up stories, they are taping videos in Iraqi, Palestine and other Muslim countries, and they just show it to people, that’s all they do. And then George Bush, you know, we hear on the news that George Bush was discussing with Tony Blair that he was thinking to bomb Al Jazeera so why would these people have their right to freedom and we don’t? So that’s why I think the people who are in power, they have the control over the media, and it’s a big political game. Because if it wasn’t then George Bush, he’s the symbol of politics, why would he want to bomb Al Jazeera for example? Amidst leaks and rumours (Timms) that the 2003 US bombing of Al Jazeera was a deliberate attack upon one of the few elements of the public sphere in which some Western-nationality Muslims have confidence, many elements of the mainstream Western media rose to Al Jazeera’s defence. For example, using an appeal to the right of citizens to engage in and consume free speech, the editors of influential US paper The Nation commented that: If the classified memo detailing President Bush’s alleged proposal to bomb the headquarters of Al Jazeera is provided to The Nation, we will publish the relevant sections. Why is it so vital that this information be made available to the American people? Because if a President who claims to be using the US military to liberate countries in order to spread freedom then conspires to destroy media that fail to echo his sentiments, he does not merely disgrace his office and soil the reputation of his country. He attacks a fundamental principle, freedom of the press—particularly a dissenting and disagreeable press—upon which that country was founded. (cited in Scahill) For other Australian Muslims, it is the fact that some media organisations have been listed as banned by the US that gives them their ultimate credibility. This is the case with Al Manar, for example. Feeling that they are denied access to public spaces to partake in democratic dialogue as equal political citizens, Australian Muslims are pursuing alternative communicative spaces that support and reinforce their own cultural worldviews. The act of engaging with marginalised and alternative communicative spaces constitutes what Clifford terms ‘collective practices of displaced dwelling’. It is through these practices of displaced dwelling that Australian Muslims essentialise their diasporic identity and negotiate new identities based on common perceptions of injustice against Muslims. But you look at Al Jazeera they talk in the same tongue as the Western media in our language. And then you look again at something like Al Manar who talks of their own tongue. They do not use the other media’s ideas. They have been attacked by the Australians, been attacked by the Israelis and they have their own opinion. This statement came from an Australian Muslim of Jordanian background in her late forties. It reflects a growing trend towards engaging with media messages that coincide with and reinforce a sense of injustice. The Al Manar television station to which this participant refers is a Lebanese based station run by the militant Hezbollah movement and accessible to Australians via satellite. Much like Al Jazeera, Al Manar broadcasts images of Iraqi and Palestinian suffering and, in the recent war between Israel and Hezbollah, graphic images of Lebanese casualties of Israeli air strikes. Unlike the Al Jazeera broadcasts, these images are formatted into video clips accompanied by music and lyrics such as “we do not fear America”. Despite political pressure including a decision by the US to list Al Manar as a terrorist organisation in December 2004, just one week after a French ban on the station because its programming had “a militant perspective with anti-Semitic connotations” (Jorisch), Al Manar continued to broadcast videos depicting the US as the “mother of terrorism”. In one particularly graphic sequence, the Statue of Liberty rises from the depths of the sea, wielding a knife in place of the torch and dripping in blood, her face altered to resemble a skull. As she rises out of the sea accompanied by music resembling a funeral march the following words in Arabic are emblazoned across the screen: On the dead bodies of millions of native Americans And through the enslavement of tens of millions Africans The US rose It pried into the affairs of most countries in the world After an extensive list of countries impacted by US foreign policy including China, Japan, Congo, Vietnam, Peru, Laos, Libya and Guatamala, the video comes to a gruelling halt with the words ‘America owes blood to all of humanity’. Another video juxtaposes images of Bush with Hitler with the caption ‘History repeats itself’. One website run by the Coalition against Media Terrorism refers to Al Manar as ‘the beacon of hatred’ and applauds the decisions by the French and US governments to ban the station. Al Manar defended itself against the bans stating on its website that they are attempts “to terrorise and silence thoughts that are not in line with the US and Israeli policies.” The station claims that it continues on its mission “to carry the message of defending our peoples’ rights, holy places and just causes…within internationally agreed professional laws and standards”. The particular brand of propaganda employed by Al Manar is gaining popularity among some Muslims in Australia largely because it affirms their own views and opinions and offers them opportunities to engage in an alternative public space in which Muslims are positioned as the victims and not the aggressors. Renegotiating an ‘Othered’ Identity The negative portrayal of Muslims as ‘other’ in the Australian media and in political discourse has resulted in Australian Muslims constructing alternative identities based on a common perception of injustice. Particularly since the terrorist attacks on the World Trade Centre in September 2001 and the ensuing “war on terror”, the ethnic divisions within the Muslim diaspora are becoming less significant as Australian Muslims reconstruct their identity based on a notion of supporting each other in the face of a global alliance against Islam. Religious identity is increasingly becoming the identity of choice for Muslims in Australia. This causes problems, however, since religious identity has no place in the liberal democratic model, which espouses secularism. This is particularly the case where that religion is sometimes constructed as being at odds with the principles and values of liberal democracy; namely tolerance and adherence to the rule of law. This problematic creates a context in which Muslim Australians are not only denied their heterogeneity in the media and political discourse but are dealt with through an understanding of Islam that is constructed on the basis of a cultural and ideological clash between Islam and the West. Religion has become the sole and only characteristic by which Muslims are recognised, denying them political citizenship and access to the public spaces of citizenship. Such ‘essentialising practices’ as eliding considerable diversity into a single descriptor serves to reinforce and consolidate diasporic identity among Muslims in Australia, but does little to promote and assist participatory citizenship or to equip Muslims with the tools necessary to access the public sphere as political citizens of the secular state. In such circumstances, the moderate Muslim may be not so much a ‘preferred’ citizen as one whose rights has been constrained. Acknowledgment This paper is based on the findings of an Australian Research Council Discovery Project, 2005-7, involving 10 focus groups and 60 in-depth interviews. The authors wish to acknowledge the participation and contributions of WA community members. References Akbarzadeh, Shahram, and Bianca Smith. The Representation of Islam and Muslims in the Media (The Age and Herald Sun Newspapers). Melbourne: Monash University, 2005. Aly, Anne, and Mark Balnaves. ”‘They Want Us to Be Afraid’: Developing Metrics of the Fear of Terrorism.” International Journal of Diversity in Organisations, Communities and Nations 6 (2007): 113-122. Aly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40. Clifford, James. Routes: Travel and Translation in the Late Twentieth Century. London: Harvard UP, 1997. Haas, Tanni. “The Public Sphere as a Sphere of Publics: Rethinking Habermas’s Theory of the Public Sphere.” Journal of Communication 54.1 (2004): 178- 84. Jorisch, Avi. J. “Al-Manar and the War in Iraq.” Middle East Intelligence Bulletin 5.2 (2003). Noelle-Neumann, Elisabeth. “The Spiral of Silence: A Theory of Public Opinion.” Journal of Communication 24.2 (1974): 43-52. “Online Archives of California”. California Digital Library. n.d. Feb. 2008 < http://content.cdlib.org/ark:/13030/kt1199n498/?&query= %22open%20platform%22&brand=oac&hit.rank=1 >. Panopoulos, Sophie. Parliamentary debate, 5 Sep. 2005. Feb. 2008 < http://www.aph.gov.au.hansard >. Saniotis, Arthur. “Embodying Ambivalence: Muslim Australians as ‘Other’.” Journal of Australian Studies 82 (2004): 49-58. Scahill, Jeremy. “The War on Al-Jazeera (Comment)”. 2005. The Nation. Feb. 2008 < http://www.thenation.com/doc/20051219/scahill >. Timms, Dominic. “Al-Jazeera Seeks Answers over Bombing Memo”. 2005. Media Guardian. Feb. 2008 < http://www.guardian.co.uk/media/2005/nov/23/iraq.iraqandthemedia >.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. Since this paper was first published in 2002 there has been a constant stream of litigation surrounding P2P in the US and in other jurisdictions. In the United States, the District Court and the Court of Appeals controversially held that Grokster was not liable for contributory and vicarious copyright infringement. Justice Thomas of the Federal Circuit observed: "We live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation." The United States Supreme Court is due to hear an appeal by copyright owners against the Grokster decision in 2005. In Australia, litigation was initiated against Sharman License Holdings, LEF Interactive and Brilliant Digital Entertainment, as the controllers of the peer to peer network Kazaa. Again, media owners have emphasized that the network is a pirate bazaar. Global legal forum shopping is one of the intriguing aspects of P2P. We see the arguments of both sides, originally developed specifically for US deliberation manifest across the globe. The Media naively ask whether there is any point in the Australian court considering these issues, given the litigation ongoing in the US. Here the US is seen as the world leader for legal ideas surrounding P2P, with the currency in ideas about technology, innovation and growing the global information economy clouding appreciation of national sovereignty and the distinctiveness of local jurisprudence. This context makes an appreciation of the cultural uniqueness of the US views all the more important. Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law by Kathy Bowrey and Matthew Rimmer Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

On 23 August 2005, John Howard, then Prime Minister, called together Muslim ‘representatives’ from around the nation for a Muslim Summit in response to the London bombings in July of that year. One of the outcomes of the two hour summit was a Statement of Principles committing Muslim communities in Australia to resist radicalisation and pursue a ‘moderate’ Islam. Since then the ill-defined term ‘moderate Muslim’ has been used in both the political and media discourse to refer to a preferred form of Islamic practice that does not challenge the hegemony of the nation state and that is coherent with the principles of secularism. Akbarzadeh and Smith conclude that the terms ‘moderate’ and ‘mainstream’ are used to describe Muslims whom Australians should not fear in contrast to ‘extremists’. Ironically, the policy direction towards regulating the practice of Islam in Australia in favour of a state defined ‘moderate’ Islam signals an attempt by the state to mediate the practice of religion, undermining the ethos of secularism as it is expressed in the Australian Constitution. It also – arguably – impacts upon the citizenship rights of Australian Muslims in so far as citizenship presents not just as a formal set of rights accorded to an individual but also to democratic participation: the ability of citizens to enjoy those rights at a substantive level. Based on the findings of research into how Australian Muslims and members of the broader community are responding to the political and media discourses on terrorism, this article examines the impact of these discourses on how Muslims are practicing citizenship and re-defining an Australian Muslim identity. Free Speech Free speech has been a hallmark of liberal democracies ever since its defence became part of the First Amendment to the United States Constitution. The Australian Constitution does not expressly contain a provision for free speech. The right to free speech in Australia is implied in Australia’s ratification of the United Nations Universal Declaration of Human Rights (UDHR), article 19 of which affirms: Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The ultimate recent endorsement of free speech rights, arguably associated with the radical free speech ‘open platform’ movement of the 1960s at the University of California Berkeley, constructs free speech as essential to human and civil liberties. Its approach has been expressed in terms such as: “I reject and detest XYZ views but will defend to the utmost a person’s right to express them”. An active defence of free speech is based on the observation that, unless held to account, “[Authorities] would grant free speech to those with whom they agree, but not to minorities whom they consider unorthodox or threatening” (“Online Archives of California”). Such minorities, differing from the majority view, do so as a right accorded to citizens. In very challenging circumstances – such as opposing the Cold War operations of the US Senate Anti-American Activities Committee – the free speech movement has been celebrated as holding fast (or embodying a ‘return’) to the true meaning of the American First Amendment. It was in public statements of unpopular and minority views, which opposed those of the majority, that the right to free speech could most non-controvertibly be demonstrated. Some have argued that such rights should be balanced by anti-vilification legislation, by prohibitions upon incitement to violence, and by considerations as to whether the organisation defended by the speaker was banned. In the latter case, there can be problems with excluding the defence of banned organisations from legitimate debate. In the 1970s and 1980s, for example, Sinn Fein was denounced in the UK as the ‘political wing of the IRA’ (the IRA being a banned organisation) and denied a speaking position in many forums, yet has proved to be an important party in the eventual reconciliation of the Northern Ireland divide. In effect, the banning of an organisation is a political act and such acts should best be interrogated through free speech and democratic debate. Arguably, such disputation is a responsibility of an involved citizenry. In general, liberal democracies such as Australia do not hesitate to claim that citizens have a right to free speech and that this is a right worth defending. There is a legitimate expectation by Australians of their rights as citizens to freedom of expression. For some Australian Muslims, however, the appeal to free speech seems a hollow one. Muslim citizens run the risk of being constructed as ‘un-Australian’ when they articulate their concerns or opinions. Calls by some Muslim leaders not to reprint the Danish cartoons depicting images of the Prophet Mohammed for example, met with a broader community backlash and drew responses that, typically, constructed Muslims as a threat to Australian cultural values of freedom and liberty. These kinds of responses to expressions by Australian Muslims of their deeply held convictions are rarely, if ever, interpreted as attempts to curtail Australian Muslims’ rights to free speech. There is a poor fit between what many Australian Muslims believe and what they feel the current climate in Australia allows them to say in the public domain. Positioned as the potential ‘enemy within’ in the evolving media and political discourse post September 11, they have been allocated restricted speaking positions on many subjects from the role and training of their Imams to the right to request Sharia courts (which could operate in parallel with Australian courts in the same way that Catholic divorce/annulment courts do). These social and political restrictions lead them to question whether Muslims enjoy citizenship rights on an equal footing with Australians from the broader community. The following comment from an Australian woman, an Iraqi refugee, made in a research interview demonstrates this: The media say that if you are Australian it means that you enjoy freedom, you enjoy the rights of citizenship. That is the idea of what it means to be Australian, that you do those things. But if you are a Muslim, you are not Australian. You are a people who are dangerous, a people who are suspicious, a people who do not want democracy—all the characteristics that make up terrorists. So yes, there is a difference, a big difference. And it is a feeling all Muslims have, not just me, whether you are at school, at work, and especially if you wear the hijab. (Translated from Arabic by Anne Aly) At the same time, Australian Muslims observe some members of the broader community making strong assertions about Muslims (often based on misunderstanding or misinformation) with very little in the way of censure or rebuke. For example, again in 2005, Liberal backbenchers Sophie Panopoulos and Bronwyn Bishop made an emotive plea for the banning of headscarves in public schools, drawing explicitly on the historically inherited image of Islam as a violent, backward and oppressive ideology that has no place in Western liberal democracy: I fear a frightening Islamic class emerging, supported by a perverse interpretation of the Koran where disenchantment breeds disengagement, where powerful and subversive orthodoxies are inculcated into passionate and impressionable young Muslims, where the Islamic mosque becomes the breeding ground for violence and rejection of Australian law and ideals, where extremists hijack the Islamic faith with their own prescriptive and unbending version of the Koran and where extremist views are given currency and validity … . Why should one section of the community be stuck in the Dark Ages of compliance cloaked under a veil of some distorted form of religious freedom? (Panopoulos) Several studies attest to the fact that, since the terrorist attacks in the United States in September 2001, Islam, and by association Australian Muslims, have been positioned as other in the political and media discourse (see for example Aly). The construct of Muslims as ‘out of place’ (Saniotis) denies them entry and representation in the public sphere: a key requisite for democratic participation according to Habermas (cited in Haas). This notion of a lack of a context for Muslim citizenship in Australian public spheres arises out of the popular construction of ‘Muslim’ and ‘Australian’ as mutually exclusive modes of being. Denied access to public spaces to partake in democratic dialogue as political citizens, Australian Muslims must pursue alternative communicative spaces. Some respond by limiting their expressions to closed spheres of communication – a kind of enforced silence. Others respond by pursuing alternative media discourses that challenge the dominant stereotypes of Muslims in Western media and reinforce majority-world cultural views. Enforced Silence In closed spheres of discussion, Australian Muslims can openly share their perceptions about terrorism, the government and media. Speaking openly in public however, is not common practice and results in forced silence for fear of reprisal or being branded a terrorist: “if we jump up and go ‘oh how dare you say this, rah, rah’, he’ll be like ‘oh he’s going to go off, he’ll blow something up’”. One research participant recalled that when his work colleagues were discussing the September 11 attacks he decided not to partake in the conversation because it “might be taken against me”. The participant made this decision despite the fact that his colleagues were expressing the opinion that United States foreign policy was the likely cause for the attacks—an opinion with which he agreed. This suggests some support for the theory that the fear of social isolation may make Australian Muslims especially anxious or fearful of expressing opinions about terrorism in public discussions (Noelle-Neumann). However, it also suggests that the fear of social isolation for Muslims is not solely related to the expression of minority opinion, as theorised in Noelle-Neumann’s Spiral of Silence . Given that many members of the wider community shared the theory that the attacks on the Pentagon and the World Trade Centre in 2001 may have been a response to American foreign policy, this may well not be a minority view. Nonetheless, Australian Muslims hesitated to embrace it. Saniotis draws attention to the pressure on Australian Muslims to publicly distance themselves from the terrorist attacks of September 11 and to openly denounce the actions of terrorists. The extent to which Muslims were positioned as a threatening other was contingent on their ability to demonstrate that they too participated in the distal responses to the terrorist attacks—initial pity for the sufferer and eventual marginalisation and rejection of the perceived aggressor. Australian Muslims were obliged to declare their loyalty and commitment to Australia’s ally and, in this way, partake in the nationalistic responses to the threat of terrorism. At the same time however, Australian Muslims were positioned as an imagined enemy and a threat to national identity. Australian Muslims were therefore placed in a paradoxical bind- as Australians they were expected to respond as the victims of fear; as Muslims they were positioned as the objects of fear. Even in discussions where their opinions are congruent with the dominant opinion being expressed, Australian Muslims describe themselves as feeling apprehensive or anxious about expressing their opinions because of how these “might be taken”. Pursuing alternative discourses The overriding message from the research project’s Muslim participants was that the media, as a powerful purveyor of public opinion, had inculcated a perception of Muslims as a risk to Australia and Australians: an ‘enemy within’; the potential ‘home grown terrorist’. The daily experience of visibly-different Australian Muslims, however, is that they are more fearing than fear-inspiring. The Aly and Balnaves fear scale indicates that Australian Muslims have twice as many fear indicators as non-Muslims Australians. Disengagement from Western media and media that is seen to be influenced or controlled by the West is widespread among Australian Muslims who increasingly argue that the media institutions are motivated by an agenda that includes profit and the perpetuation of a negative stereotype of Muslims both in Australia and around the globe, particularly in relation to Middle Eastern affairs. The negative stereotypes of Muslims in the Australian media have inculcated a sense of victimhood which Muslims in Australia have used as the basis for a reconstruction of their identity and the creation of alternative narratives of belonging (Aly). Central to the notion of identity among Australian Muslims is a sense of having their citizenship rights curtailed by virtue of their faith: of being included in a general Western dismissal of Muslims’ rights and experiences. As one interviewee said: If you look at the Channel Al Jazeera for example, it’s a channel but they aren’t making up stories, they are taping videos in Iraqi, Palestine and other Muslim countries, and they just show it to people, that’s all they do. And then George Bush, you know, we hear on the news that George Bush was discussing with Tony Blair that he was thinking to bomb Al Jazeera so why would these people have their right to freedom and we don’t? So that’s why I think the people who are in power, they have the control over the media, and it’s a big political game. Because if it wasn’t then George Bush, he’s the symbol of politics, why would he want to bomb Al Jazeera for example? Amidst leaks and rumours (Timms) that the 2003 US bombing of Al Jazeera was a deliberate attack upon one of the few elements of the public sphere in which some Western-nationality Muslims have confidence, many elements of the mainstream Western media rose to Al Jazeera’s defence. For example, using an appeal to the right of citizens to engage in and consume free speech, the editors of influential US paper The Nation commented that: If the classified memo detailing President Bush’s alleged proposal to bomb the headquarters of Al Jazeera is provided to The Nation, we will publish the relevant sections. Why is it so vital that this information be made available to the American people? Because if a President who claims to be using the US military to liberate countries in order to spread freedom then conspires to destroy media that fail to echo his sentiments, he does not merely disgrace his office and soil the reputation of his country. He attacks a fundamental principle, freedom of the press—particularly a dissenting and disagreeable press—upon which that country was founded. (cited in Scahill) For other Australian Muslims, it is the fact that some media organisations have been listed as banned by the US that gives them their ultimate credibility. This is the case with Al Manar, for example. Feeling that they are denied access to public spaces to partake in democratic dialogue as equal political citizens, Australian Muslims are pursuing alternative communicative spaces that support and reinforce their own cultural worldviews. The act of engaging with marginalised and alternative communicative spaces constitutes what Clifford terms ‘collective practices of displaced dwelling’. It is through these practices of displaced dwelling that Australian Muslims essentialise their diasporic identity and negotiate new identities based on common perceptions of injustice against Muslims. But you look at Al Jazeera they talk in the same tongue as the Western media in our language. And then you look again at something like Al Manar who talks of their own tongue. They do not use the other media’s ideas. They have been attacked by the Australians, been attacked by the Israelis and they have their own opinion. This statement came from an Australian Muslim of Jordanian background in her late forties. It reflects a growing trend towards engaging with media messages that coincide with and reinforce a sense of injustice. The Al Manar television station to which this participant refers is a Lebanese based station run by the militant Hezbollah movement and accessible to Australians via satellite. Much like Al Jazeera, Al Manar broadcasts images of Iraqi and Palestinian suffering and, in the recent war between Israel and Hezbollah, graphic images of Lebanese casualties of Israeli air strikes. Unlike the Al Jazeera broadcasts, these images are formatted into video clips accompanied by music and lyrics such as “we do not fear America”. Despite political pressure including a decision by the US to list Al Manar as a terrorist organisation in December 2004, just one week after a French ban on the station because its programming had “a militant perspective with anti-Semitic connotations” (Jorisch), Al Manar continued to broadcast videos depicting the US as the “mother of terrorism”. In one particularly graphic sequence, the Statue of Liberty rises from the depths of the sea, wielding a knife in place of the torch and dripping in blood, her face altered to resemble a skull. As she rises out of the sea accompanied by music resembling a funeral march the following words in Arabic are emblazoned across the screen: On the dead bodies of millions of native Americans And through the enslavement of tens of millions Africans The US rose It pried into the affairs of most countries in the world After an extensive list of countries impacted by US foreign policy including China, Japan, Congo, Vietnam, Peru, Laos, Libya and Guatamala, the video comes to a gruelling halt with the words ‘America owes blood to all of humanity’. Another video juxtaposes images of Bush with Hitler with the caption ‘History repeats itself’. One website run by the Coalition against Media Terrorism refers to Al Manar as ‘the beacon of hatred’ and applauds the decisions by the French and US governments to ban the station. Al Manar defended itself against the bans stating on its website that they are attempts “to terrorise and silence thoughts that are not in line with the US and Israeli policies.” The station claims that it continues on its mission “to carry the message of defending our peoples’ rights, holy places and just causes…within internationally agreed professional laws and standards”. The particular brand of propaganda employed by Al Manar is gaining popularity among some Muslims in Australia largely because it affirms their own views and opinions and offers them opportunities to engage in an alternative public space in which Muslims are positioned as the victims and not the aggressors. Renegotiating an ‘Othered’ Identity The negative portrayal of Muslims as ‘other’ in the Australian media and in political discourse has resulted in Australian Muslims constructing alternative identities based on a common perception of injustice. Particularly since the terrorist attacks on the World Trade Centre in September 2001 and the ensuing “war on terror”, the ethnic divisions within the Muslim diaspora are becoming less significant as Australian Muslims reconstruct their identity based on a notion of supporting each other in the face of a global alliance against Islam. Religious identity is increasingly becoming the identity of choice for Muslims in Australia. This causes problems, however, since religious identity has no place in the liberal democratic model, which espouses secularism. This is particularly the case where that religion is sometimes constructed as being at odds with the principles and values of liberal democracy; namely tolerance and adherence to the rule of law. This problematic creates a context in which Muslim Australians are not only denied their heterogeneity in the media and political discourse but are dealt with through an understanding of Islam that is constructed on the basis of a cultural and ideological clash between Islam and the West. Religion has become the sole and only characteristic by which Muslims are recognised, denying them political citizenship and access to the public spaces of citizenship. Such ‘essentialising practices’ as eliding considerable diversity into a single descriptor serves to reinforce and consolidate diasporic identity among Muslims in Australia, but does little to promote and assist participatory citizenship or to equip Muslims with the tools necessary to access the public sphere as political citizens of the secular state. In such circumstances, the moderate Muslim may be not so much a ‘preferred’ citizen as one whose rights has been constrained. Acknowledgment This paper is based on the findings of an Australian Research Council Discovery Project, 2005-7, involving 10 focus groups and 60 in-depth interviews. The authors wish to acknowledge the participation and contributions of WA community members. References Akbarzadeh, Shahram, and Bianca Smith. The Representation of Islam and Muslims in the Media (The Age and Herald Sun Newspapers). Melbourne: Monash University, 2005. Aly, Anne, and Mark Balnaves. ”‘They Want Us to Be Afraid’: Developing Metrics of the Fear of Terrorism.” International Journal of Diversity in Organisations, Communities and Nations 6 (2007): 113-122. Aly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40. Clifford, James. Routes: Travel and Translation in the Late Twentieth Century. London: Harvard UP, 1997. Haas, Tanni. “The Public Sphere as a Sphere of Publics: Rethinking Habermas’s Theory of the Public Sphere.” Journal of Communication 54.1 (2004): 178- 84. Jorisch, Avi. J. “Al-Manar and the War in Iraq.” Middle East Intelligence Bulletin 5.2 (2003). Noelle-Neumann, Elisabeth. “The Spiral of Silence: A Theory of Public Opinion.” Journal of Communication 24.2 (1974): 43-52. “Online Archives of California”. California Digital Library. n.d. Feb. 2008 http://content.cdlib.org/ark:/13030/kt1199n498/?&query= %22open%20platform%22&brand=oac&hit.rank=1>. Panopoulos, Sophie. Parliamentary debate, 5 Sep. 2005. Feb. 2008 http://www.aph.gov.au.hansard>. Saniotis, Arthur. “Embodying Ambivalence: Muslim Australians as ‘Other’.” Journal of Australian Studies 82 (2004): 49-58. Scahill, Jeremy. “The War on Al-Jazeera (Comment)”. 2005. The Nation. Feb. 2008 http://www.thenation.com/doc/20051219/scahill>. Timms, Dominic. “Al-Jazeera Seeks Answers over Bombing Memo”. 2005. Media Guardian. Feb. 2008 http://www.guardian.co.uk/media/2005/nov/23/iraq.iraqandthemedia>. Citation reference for this article MLA Style Aly, Anne, and Lelia Green. "‘Moderate Islam’: Defining the Good Citizen." M/C Journal 10.6/11.1 (2008). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0804/08-aly-green.php>. APA Style Aly, A., and L. Green. (Apr. 2008) "‘Moderate Islam’: Defining the Good Citizen," M/C Journal, 10(6)/11(1). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0804/08-aly-green.php>.

Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php>. Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html>. McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf>. Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0609/5-collins.php>. APA Style Collins, S. 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Human history has witnessed varied surveillance and counter-surveillance activities from time immemorial. Human beings could not surveille others effectively and accurately without the technology of their era. Technology is a tool that can empower both people and governments. The outcomes are different based on the users’ intentions and aims. 2,500 years ago, Sun Tzu noted that ‘If you know both yourself and your enemy, you can win numerous (literally, "a hundred") battles without jeopardy’. His words still ring true. To be a good surveiller and counter-surveiller it is essential to know both sides, and in order to be good at these activities access to technology is vital. There is no doubt that knowledge is power, and without technology to access the information, it is impossible to be powerful. As we become more expert at technology, we will learn what makes surveillance and counter-surveillance more effective, and will be more powerful.“Surveillance” is one of the most important aspects of living in the convergent media environment. This essay illustrates government surveillance and counter-surveillance during the Iranian Green Movement (2009) on social and mobile media. The Green Movement refers to a non-violent movement that arose after the disputed presidential election on June 2009. After that Iran was facing its most serious political crisis since the 1979 revolution. Claims of vote fraud triggered massive street protests. Many took to the streets with “Green” signs, chanting slogans such as ‘the government lied’, and ‘where is my vote?’ There is no doubt that social and mobile media has played an important role in Iran’s contemporary politics. According to Internet World Stats (IWS) Internet users in 2009 account for approximately 48.5 per cent of the population of Iran. In 2009, Iran had 30.2 million mobile phone users (Freedom House), and 72 cellular subscriptions for every 100 people (World Bank). Today, while Iran has the 19th-largest population in the world, its blogosphere holds the third spot in terms of number of users, just behind the United States and China (Beth Elson et al.). In this essay the use of social and mobile media (technology) is not debated, but the extent of this use, and who, why and how it is used, is clearly scrutinised.Visibility and Surveillance There have been different kinds of surveillance for a very long time. However, all types of surveillance are based on the notion of “visibility”. Previous studies show that visibility is not a new term (Foucault Discipline). The new things in the new era, are its scale, scope and complicated ways to watch others without being watched, which are not limited to a specific time, space and group, and are completely different from previous instruments for watching (Andrejevic). As Meikle and Young (146) have mentioned ‘networked digital media bring with them a new kind of visibility’, based on different kinds of technology. Internet surveillance has important implications in politics to control, protect, and influence (Marx Ethics; Castells; Fuchs Critique). Surveillance has been improved during its long history, and evolved from very simple spying and watching to complicated methods of “iSpy” (Andrejevic). To understand the importance of visibility and its relationship with surveillance, it is essential to study visibility in conjunction with the notion of “panopticon” and its contradictory functions. Foucault uses Bentham's notion of panopticon that carries within itself visibility and transparency to control others. “Gaze” is a central term in Bentham’s view. ‘Bentham thinks of a visibility organised entirely around a dominating, overseeing gaze’ (Foucault Eye). Moreover, Thomson (Visibility 11) notes that we are living in the age of ‘normalizing the power of the gaze’ and it is clear that the influential gaze is based on powerful means to see others.Lyon (Surveillance 2) explains that ‘surveillance is any collection and processing of personal data, whether identifiable or not, for the purpose of influencing or managing those whose data have been granted…’. He mentions that today the most important means of surveillance reside in computer power which allows collected data to be sorted, matched, retrieved, processed, marketed and circulated.Nowadays, the Internet has become ubiquitous in many parts of the world. So, the changes in people’s interactions have influenced their lives. Fuchs (Introduction 15) argues that ‘information technology enables surveillance at a distance…in real time over networks at high transmission speed’. Therefore, visibility touches different aspects of people’s lives and living in a “glasshouse” has caused a lot of fear and anxiety about privacy.Iran’s Green Movement is one of many cases for studying surveillance and counter-surveillance technologies in social and mobile media. Government Surveillance on Social and Mobile Media in Iran, 2009 In 2009 the Iranian government controlled technology that allowed them to monitor, track, and limit access to the Internet, social media and mobiles communication, which has resulted in the surveillance of Green Movement’s activists. The Iranian government had improved its technical capabilities to monitor the people’s behavior on the Internet long before the 2009 election. The election led to an increase in online surveillance. Using social media the Iranian government became even more powerful than it was before the election. Social media was a significant factor in strengthening the government’s power. In the months after the election the virtual atmosphere became considerably more repressive. The intensified filtering of the Internet and implementation of more advanced surveillance systems strengthened the government’s position after the election. The Open Net Initiative revealed that the Internet censorship system in Iran is one of the most comprehensive and sophisticated censorship systems in the world. It emphasized that ‘Advances in domestic technical capacity have contributed to the implementation of a centralized filtering strategy and a reduced reliance on Western technologies’.On the other hand, the authorities attempted to block all access to political blogs (Jaras), either through cyber-security methods or through threats (Tusa). The Centre for Investigating Organized Cyber Crimes, which was founded in 2007 partly ‘to investigate and confront social and economic offenses on the Internet’ (Cyber Police), became increasingly important over the course of 2009 as the government combated the opposition’s online activities (Beth Elson et al. 16). Training of "senior Internet lieutenants" to confront Iran's "virtual enemies online" was another attempt that the Intelligence minister announced following the protests (Iran Media Program).In 2009 the Iranian government enacted the Computer Crime Law (Jaras). According to this law the Committee in Charge of Determining Unauthorized Websites is legally empowered to identify sites that carry forbidden content and report that information to TCI and other major ISPs for blocking (Freedom House). In the late fall of 2009, the government started sending threatening and warning text messages to protesters about their presence in the protests (BBC). Attacking, blocking, hacking and hijacking of the domain names of some opposition websites such as Jaras and Kaleme besides a number of non-Iranian sites such as Twitter were among the other attempts of the Iranian Cyber Army (Jaras).It is also said that the police and security forces arrested dissidents identified through photos and videos posted on the social media that many imagined had empowered them. Furthermore, the online photos of the active protesters were posted on different websites, asking people to identify them (Valizadeh).In late June 2009 the Iranian government was intentionally permitting Internet traffic to and from social networking sites such as Facebook and Twitter so that it could use a sophisticated practice called Deep Packet Inspection (DPI) to collect information about users. It was reportedly also applying the same technology to monitor mobile phone communications (Beth Elson et al. 15).On the other hand, to cut communication between Iranians inside and outside the country, Iran slowed down the Internet dramatically (Jaras). Iran also blocked access to Facebook, YouTube, Wikipedia, Twitter and many blogs before, during and after the protests. Moreover, in 2009, text message services were shut down for over 40 days, and mobile phone subscribers could not send or receive text messages regardless of their mobile carriers. Subsequently it was disrupted on a temporary basis immediately before and during key protests days.It was later discovered that the Nokia Siemens Network provided the government with surveillance technologies (Wagner; Iran Media Program). The Iranian government built a complicated system that enabled it to monitor, track and intercept what was said on mobile phones. Nokia Siemens Network confirmed it supplied Iran with the technology needed to monitor, control, and read local telephone calls [...] The product allowed authorities to monitor any communications across a network, including voice calls, text messaging, instant messages, and web traffic (Cellan-Jones). Media sources also reported that two Chinese companies, Huawei and ZTE, provided surveillance technologies to the government. The Nic Payamak and Saman Payamak websites, that provide mass text messaging services, also reported that operator Hamrah Aval commonly blocked texts with words such as meeting, location, rally, gathering, election and parliament (Iran Media Program). Visibility and Counter-Surveillance The panopticon is not limited to the watchers. Similarly, new kinds of panopticon and visibility are not confined to government surveillance. Foucault points out that ‘the seeing machine was once a sort of dark room into which individuals spied; it has become a transparent building in which the exercise of power may be supervised by society as a whole’ (Discipline 207). What is important is Foucault's recognition that transparency, not only of those who are being observed but also of those who are observing, is central to the notion of the panopticon (Allen) and ‘any member of society will have the right to come and see with his own eyes how schools, hospitals, factories, and prisons function’ (Foucault, Discipline 207). Counter-surveillance is the process of detecting and mitigating hostile surveillance (Burton). Therefore, while the Internet is a surveillance instrument that enables governments to watch people, it also improves the capacity to counter-surveille, and draws public attention to governments’ injustice. As Castells (185) notes the Internet could be used by citizens to watch their government as an instrument of control, information, participation, and even decision-making, from the bottom up.With regards to the role of citizens in counter-surveillance we can draw on Jay Rosen’s view of Internet users as ‘the people formerly known as the audience’. In counter-surveillance it can be said that passive citizens (formerly the audience) have turned into active citizens. And this change was becoming impossible without mobile and social media platforms. These new techniques and technologies have empowered people and given them the opportunity to have new identities. When Thompson wrote ‘the exercise of power in modern societies remains in many ways shrouded in secrecy and hidden from the public gaze’ (Media 125), perhaps he could not imagine that one day people can gaze at the politicians, security forces and the police through the use of the Internet and mobile devices.Furthermore, while access to mobile media allows people to hold authorities accountable for their uses and abuses of power (Breen 183), social media can be used as a means of representation, organization of collective action, mobilization, and drawing attention to police brutality and reasons for political action (Gerbaudo).There is no doubt that having creativity and using alternative platforms are important aspects in counter-surveillance. For example, images of Lt. Pike “Pepper Spray Cop” from the University of California became the symbol of the senselessness of police brutality during the Occupy Movement (Shaw). Iranians’ Counter-Surveillance on Social and Mobile Media, 2009 Iran’s Green movement (2009) triggered a lot of discussions about the role of technology in social movements. In this regard, there are two notable attitudes about the role of technology: techno-optimistic (Shriky and Castells) and techno-pessimistic (Morozov and Gladwell) views should be taken into account. While techno-optimists overrated the role of social media, techno-pessimists underestimated its role. However, there is no doubt that technology has played a great role as a counter-surveillance tool amongst Iranian people in Iran’s contemporary politics.Apart from the academic discussions between techno-optimists and techno-pessimists, there have been numerous debates about the role of new technologies in Iran during the Green Movement. This subject has received interest from different corners of the world, including Western countries, Iranian authorities, opposition groups, and also some NGOs. However, its role as a means of counter-surveillance has not received adequate attention.As the tools of counter-surveillance are more or less the tools of surveillance, protesters learned from the government to use the same techniques to challenge authority on social media.Establishing new websites (such as JARAS, RASA, Kalemeh, and Iran green voice) or strengthening some previous ones (such as Saham, Emrooz, Norooz), also activating different platforms such as Facebook, Twitter, and YouTube accounts to broadcast the voice of the Iranian Green Movement and neutralize the government’s propaganda were the most important ways to empower supporters of Iran’s Green Movement in counter-surveillance.‘Reporters Without Borders issued a statement, saying that ‘the new media, and particularly social networks, have given populations collaborative tools with which they can change the social order’. It is also mentioned that despite efforts by the Iranian government to prevent any reporting of the protests and due to considerable pressure placed on foreign journalists inside Iran, social media played a significant role in sending the messages and images of the movement to the outside world (Axworthy). However, at that moment, many thought that Twitter performed a liberating role for Iranian dissenters. For example, Western media heralded the Green Movement in Iran as a “Twitter revolution” fuelled by information and communication technologies (ICTs) and social media tools (Carrieri et al. 4). “The Revolution Will Be Twittered” was the first in a series of blog posts published by Andrew Sullivan a few hours after the news of the protests was released.According to the researcher’s observation the numbers of Twitter users inside Iran who tweeted was very limited in 2009 and social media was most useful in the dissemination of information, especially from those inside Iran to outsiders. Mobile phones were mostly influential as an instrument firstly used for producing contents (images and videos) and secondly for the organisation of protests. There were many photos and videos that were filmed by very simple mobile cell phones, uploaded by ordinary people onto YouTube and other platforms. The links were shared many times on Twitter and Facebook and released by mainstream media. The most frequently circulated story from the Iranian protests was a video of Neda Agha-Sultan. Her final moments were captured by some bystanders with mobile phone cameras and rapidly spread across the global media and the Internet. It showed that the camera-phone had provided citizens with a powerful means, allowing for the creation and instant sharing of persuasive personalised eyewitness records with mobile and globalised target populations (Anden-Papadopoulos).Protesters used another technique, DDOS (distributed denial of service attacks), for political protest in cyber space. Anonymous people used DDOS to overload a website with fake requests, making it unavailable for users and disrupting the sites set as targets (McMillan) in effect, shutting down the site. DDOS is an important counter-surveillance activity by grassroots activists or hackers. It was a cyber protest that knocked the main Iranian governmental websites off-line and caused crowdsourcing and false trafficking. Amongst them were Mahmoud Ahmadinejad, Iran's supreme leader’s websites and those which belong to or are close to the government or security forces, including news agencies (Fars, IRNA, Press TV…), the Ministry of Foreign Affairs, the Ministry of Justice, the Police, and the Ministry of the Interior.Moreover, as authorities uploaded the pictures of protesters onto different platforms to find and arrest them, in some cities people started to put the pictures, phone numbers and addresses of members of security forces and plain clothes police officers who attacked them during the protests and asked people to identify and report the others. They also wanted people to send information about suspects who infringed human rights. Conclusion To sum up, visibility, surveillance and counter-surveillance are not new phenomena. What is new is the technology, which increased their complexity. As Foucault (Discipline 200) mentioned ‘visibility is a trap’, so being visible would be the weakness of those who are being surveilled in the power struggle. In the convergent era, in order to be more powerful, both surveillance and counter-surveillance activities aim for more visibility. Although both attempt to use the same means (technology) to trap the other side, the differences are in their subjects, objects, goals and results.While in surveillance, visibility of the many by the few is mostly for the purpose of control and influence in undemocratic ways, in counter-surveillance, the visibility of the few by the many is mostly through democratic ways to secure more accountability and transparency from the governments.As mentioned in the case of Iran’s Green Movement, the scale and scope of visibility are different in surveillance and counter-surveillance. The importance of what Shaw wrote about Sydney occupy counter-surveillance, applies to other places, such as Iran. She has stressed that ‘protesters and police engaged in a dance of technology and surveillance with one another. Both had access to technology, but there were uncertainties about the extent of technology and its proficient use…’In Iran (2009), both sides (government and activists) used technology and benefited from digital networked platforms, but their levels of access and domains of influence were different, which was because the sources of power, information and wealth were divided asymmetrically between them. Creativity was important for both sides to make others more visible, and make themselves invisible. Also, sharing information to make the other side visible played an important role in these two areas. References Alen, David. “The Trouble with Transparency: The Challenge of Doing Journalism Ethics in a Surveillance Society.” Journalism Studies 9.3 (2008): 323-40. 8 Dec. 2013 ‹http://www.tandfonline.com/doi/full/10.1080/14616700801997224#.UqRFSuIZsqN›. 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For the past twenty years, academics and other social commentators have, by and large, shared the view that the phase of modernity through which we are currently passing is defined by two interrelated catalysts of change: the physical movement of people and the virtual movement of information around the globe. As we enter the second decade of the new millennium, it is certainly a timely moment to reflect upon the ways in which the prognoses of the scholars and scientists writing in the late twentieth century have come to pass, especially since—during the time this special issue has been in press—the revolutions that are gathering pace in the Arab world appear to be realising the theoretical prediction that the ever-increasing “flows” of people and information would ultimately bring about the end of the nation-state and herald an era of transnationalism (Appadurai, Urry). For writers like Arjun Appadurai, moreover, the concept of diaspora was key to grasping how this new world order would take shape, and how it would operate: Diasporic public spheres, diverse amongst themselves, are the crucibles of a postnational political order. The engines of their discourse are mass media (both interactive and expressive) and the movement of refugees, activists, students, laborers. It may be that the emergent postnational order proves not to be a system of homogeneous units (as with the current system of nation-states) but a system based on relations between heterogeneous units (some social movements, some interest groups, some professional bodies, some non-governmental organizations, some armed constabularies, some judicial bodies) ... In the short run, as we can see already, it is likely to be a world of increased incivility and violence. In the longer run, free from the constraints of the nation form, we may find that cultural freedom and sustainable justice in the world do not presuppose the uniform and general existence of the nation-state. This unsettling possibility could be the most exciting dividend of living in modernity at large. (23) In this editorial, we would like to return to the “here and now” of the late 1990s in which theorists like Arjun Appaduri, Ulrich Beck, John Urry, Zygmunt Bauman, Robert Robertson and others were “imagining” the consequences of both globalisation and glocalisation for the twenty-first century in order that we may better assess what is, indeed, coming to pass. While most of their prognoses for this “second modernity” have proven remarkably accurate, it is their—self-confessed—inability to forecast either the nature or the extent of the digital revolution that most vividly captures the distance between the mid-1990s and now; and it is precisely the consequences of this extraordinary technological revolution on the twin concepts of “glocality” and “diaspora” that the research featured in this special issue seeks to capture. Glocal Imaginaries Appadurai’s endeavours to show how globalisation was rapidly making itself felt as a “structure of feeling” (Williams in Appadurai 189) as well as a material “fact” was also implicit in our conceptualisation of the conference, “Glocal Imaginaries: Writing/Migration/Place,” which gave rise to this special issue. This conference, which was the culmination of the AHRC-funded project “Moving Manchester: Literature/Migration/Place (2006-10)”, constituted a unique opportunity to gain an international, cross-disciplinary perspective on urgent and topical debates concerning mobility and migration in the early twenty-first century and the strand “Networked Diasporas” was one of the best represented on the program. Attracting papers on broadcast media as well as the new digital technologies, the strand was strikingly international in terms of the speakers’ countries of origin, as is this special issue which brings together research from six European countries, Australia and the Indian subcontinent. The “case-studies” represented in these articles may therefore be seen to constitute something of a “state-of-the-art” snapshot of how Appadurai’s “glocal imaginary” is being lived out across the globe in the early years of the twenty-first century. In this respect, the collection proves that his hunch with regards to the signal importance of the “mass-media” in redefining our spatial and temporal coordinates of being and belonging was correct: The third and final factor to be addressed here is the role of the mass-media, especially in its electronic forms, in creating new sorts of disjuncture between spatial and virtual neighborhoods. This disjuncture has both utopian and dystopian potentials, and there is no easy way to tell how these may play themselves out in the future of the production of locality. (194) The articles collected here certainly do serve as testament to the “bewildering plethora of changes in ... media environments” (195) that Appadurai envisaged, and yet it can clearly also be argued that this agent of glocalisation has not yet brought about the demise of the nation-state in the way (or at the speed) that many commentators predicted. Digital Diasporas in a Transnational World Reviewing the work of the leading social science theorists working in the field during the late 1990s, it quickly becomes evident that: (a) the belief that globalisation presented a threat to the nation-state was widely held; and (b) that the “jury” was undecided as to whether this would prove a good or bad thing in the years to come. While the commentators concerned did their best to complexify both their analysis of the present and their view of the future, it is interesting to observe, in retrospect, how the rhetoric of both utopia and dystopia invaded their discourse in almost equal measure. We have already seen how Appadurai, in his 1996 publication, Modernity at Large, looks beyond the “increased incivility and violence” of the “short term” to a world “free from the constraints of the nation form,” while Roger Bromley, following Agamben and Deleuze as well as Appadurai, typifies a generation of literary and cultural critics who have paid tribute to the way in which the arts (and, in particular, storytelling) have enabled subjects to break free from their national (af)filiations (Pearce, Devolving 17) and discover new “de-territorialised” (Deleuze and Guattari) modes of being and belonging. Alongside this “hope,” however, the forces and agents of globalisation were also regarded with a good deal of suspicion and fear, as is evidenced in Ulrich Beck’s What is Globalization? In his overview of the theorists who were then perceived to be leading the debate, Beck draws distinctions between what was perceived to be the “engine” of globalisation (31), but is clearly most exercised by the manner in which the transformation has taken shape: Without a revolution, without even any change in laws or constitutions, an attack has been launched “in the normal course of business”, as it were, upon the material lifelines of modern national societies. First, the transnational corporations are to export jobs to parts of the world where labour costs and workplace obligations are lowest. Second, the computer-generation of worldwide proximity enables them to break down and disperse goods and services, and produce them through a division of labour in different parts of the world, so that national and corporate labels inevitably become illusory. (3; italics in the original) Beck’s concern is clearly that all these changes have taken place without the nation-states of the world being directly involved in any way: transnational corporations began to take advantage of the new “mobility” available to them without having to secure the agreement of any government (“Companies can produce in one country, pay taxes in another and demand state infrastructural spending in yet another”; 4-5); the export of the labour market through the use of digital communications (stereotypically, call centres in India) was similarly unregulated; and the world economy, as a consequence, was in the process of becoming detached from the processes of either production or consumption (“capitalism without labour”; 5-7). Vis-à-vis the dystopian endgame of this effective “bypassing” of the nation-state, Beck is especially troubled about the fate of the human rights legislation that nation-states around the world have developed, with immense effort and over time (e.g. employment law, trade unions, universal welfare provision) and cites Zygmunt Bauman’s caution that globalisation will, at worst, result in widespread “global wealth” and “local poverty” (31). Further, he ends his book with a fully apocalyptic vision, “the Brazilianization of Europe” (161-3), which unapologetically calls upon the conventions of science fiction to imagine a worst-case scenario for a Europe without nations. While fourteen or fifteen years is evidently not enough time to put Beck’s prognosis to the test, most readers would probably agree that we are still some way away from such a Europe. Although the material wealth and presence of the transnational corporations strikes a chord, especially if we include the world banks and finance organisations in their number, the financial crisis that has rocked the world for the past three years, along with the wars in Iraq and Afghanistan, and the ascendancy of Al-Qaida (all things yet to happen when Beck was writing in 1997), has arguably resulted in the nations of Europe reinforcing their (respective and collective) legal, fiscal, and political might through rigorous new policing of their physical borders and regulation of their citizens through “austerity measures” of an order not seen since World War Two. In other words, while the processes of globalisation have clearly been instrumental in creating the financial crisis that Europe is presently grappling with and does, indeed, expose the extent to which the world economy now operates outside the control of the nation-state, the nation-state still exists very palpably for all its citizens (whether permanent or migrant) as an agent of control, welfare, and social justice. This may, indeed, cause us to conclude that Bauman’s vision of a world in which globalisation would make itself felt very differently for some groups than others came closest to what is taking shape: true, the transnationals have seized significant political and economic power from the nation-state, but this has not meant the end of the nation-state; rather, the change is being experienced as a re-trenching of whatever power the nation-state still has (and this, of course, is considerable) over its citizens in their “local”, everyday lives (Bauman 55). If we now turn to the portrait of Europe painted by the articles that constitute this special issue, we see further evidence of transglobal processes and practices operating in a realm oblivious to local (including national) concerns. While our authors are generally more concerned with the flows of information and “identity” than business or finance (Appaduri’s “ethnoscapes,” “technoscapes,” and “ideoscapes”: 33-7), there is the same impression that this “circulation” (Latour) is effectively bypassing the state at one level (the virtual), whilst remaining very materially bound by it at another. In other words, and following Bauman, we would suggest that it is quite possible for contemporary subjects to be both the agents and subjects of globalisation: a paradox that, as we shall go on to demonstrate, is given particularly vivid expression in the case of diasporic and/or migrant peoples who may be able to bypass the state in the manufacture of their “virtual” identities/communities) but who (Cohen) remain very much its subjects (or, indeed, “non-subjects”) when attempting movement in the material realm. Two of the articles in the collection (Leurs & Ponzanesi and Marcheva) deal directly with the exponential growth of “digital diasporas” (sometimes referred to as “e-diasporas”) since the inception of Facebook in 2004, and both provide specific illustrations of the way in which the nation-state both has, and has not, been transcended. First, it quickly becomes clear that for the (largely) “youthful” (Leurs & Ponzanesi) participants of nationally inscribed networking sites (e.g. “discovernikkei” (Japan), “Hyves” (Netherlands), “Bulgarians in the UK” (Bulgaria)), shared national identity is a means and not an end. In other words, although the participants of these sites might share in and actively produce a fond and nostalgic image of their “homeland” (Marcheva), they are rarely concerned with it as a material or political entity and an expression of their national identities is rapidly supplemented by the sharing of other (global) identity markers. Leurs & Ponzanesi invoke Deleuze and Guattari’s concept of the “rhizome” to describe the way in which social networkers “weave” a “rhizomatic path” to identity, gradually accumulating a hybrid set of affiliations. Indeed, the extent to which the “nation” disappears on such sites can be remarkable as was also observed in our investigation of the digital storytelling site, “Capture Wales” (BBC) (Pearce, "Writing"). Although this BBC site was set up to capture the voices of the Welsh nation in the early twenty-first century through a collection of (largely) autobiographical stories, very few of the participants mention either Wales or their “Welshness” in the stories that they tell. Further, where the “home” nation is (re)imagined, it is generally in an idealised, or highly personalised, form (e.g. stories about one’s own family) or through a sharing of (perceived and actual) cultural idiosyncrasies (Marcheva on “You know you’re a Bulgarian when …”) rather than an engagement with the nation-state per se. As Leurs & Ponzanesi observe: “We can see how the importance of the nation-state gets obscured as diasporic youth, through cultural hybridisation of youth culture and ethnic ties initiate subcultures and offer resistance to mainstream cultural forms.” Both the articles just discussed also note the shading of the “national” into the “transnational” on the social networking sites they discuss, and “transnationalism”—in the sense of many different nations and their diasporas being united through a common interest or cause—is also a focus of Pikner’s article on “collective actions” in Europe (notably, “EuroMayDay” and “My Estonia”) and Harb’s highly topical account of the role of both broadcast media (principally, Al-Jazeera) and social media in the revolutions and uprisings currently sweeping through the Arab world (spring 2011). On this point, it should be noted that Harb identifies this as the moment when Facebook’s erstwhile predominantly social function was displaced by a manifestly political one. From this we must conclude that both transnationalism and social media sites can be put to very different ends: while young people in relatively privileged democratic countries might embrace transnationalism as an expression of their desire to “rise above” national politics, the youth of the Arab world have engaged it as a means of generating solidarity for nationalist insurgency and liberation. Another instance of “g/local” digital solidarity exceeding national borders is to be found in Johanna Sumiala’s article on the circulatory power of the Internet in the Kauhajoki school shooting which took place Finland in 2008. As well as using the Internet to “stage manage” his rampage, the Kauhajoki shooter (whose name the author chose to withhold for ethical reasons) was subsequently found to have been a member of numerous Web-based “hate groups”, many of them originating in the United States and, as a consequence, may be understood to have committed his crime on behalf of a transnational community: what Sumiala has defined as a “networked community of destruction.” It must also be noted, however, that the school shootings were experienced as a very local tragedy in Finland itself and, although the shooter may have been psychically located in a transnational hyper-reality when he undertook the killings, it is his nation-state that has had to deal with the trauma and shame in the long term. Woodward and Brown & Rutherford, meanwhile, show that it remains the tendency of public broadcast media to uphold the raison d’être of the nation-state at the same time as embracing change. Woodward’s feature article (which reports on the AHRC-sponsored “Tuning In” project which has researched the BBC World Service) shows how the representation of national and diasporic “voices” from around the world, either in opposition to or in dialogue with the BBC’s own reporting, is key to the way in which the Commission has changed and modernised in recent times; however, she is also clear that many of the objectives that defined the service in its early days—such as its commitment to a distinctly “English” brand of education—still remain. Similarly, Brown & Rutherford’s article on the innovative Australian ABC children’s television series, My Place (which has combined traditional broadcasting with online, interactive websites) may be seen to be positively promoting the Australian nation by making visible its commitment to multiculturalism. Both articles nevertheless reveal the extent to which these public service broadcasters have recognised the need to respond to their nations’ changing demographics and, in particular, the fact that “diaspora” is a concept that refers not only to their English and Australian audiences abroad but also to their now manifestly multicultural audiences at home. When it comes to commercial satellite television, however, the relationship between broadcasting and national and global politics is rather harder to pin down. Subramanian exposes a complex interplay of national and global interests through her analysis of the Malayalee “reality television” series, Idea Star Singer. Exported globally to the Indian diaspora, the show is shamelessly exploitative in the way in which it combines residual and emergent ideologies (i.e. nostalgia for a traditional Keralayan way of life vs aspirational “western lifestyles”) in pursuit of its (massive) audience ratings. Further, while the ISS series is ostensibly a g/local phenomenon (the export of Kerala to the rest of the world rather than “India” per se), Subramanian passionately laments all the progressive national initiatives (most notably, the campaign for “women’s rights”) that the show is happy to ignore: an illustration of one of the negative consequences of globalisation predicted by Beck (31) noted at the start of this editorial. Harb, meanwhile, reflects upon a rather different set of political concerns with regards to commercial satellite broadcasting in her account of the role of Al-Jazeera and Al Arabiya in the recent (2011) Arab revolutions. Despite Al-Jazeera’s reputation for “two-sided” news coverage, recent events have exposed its complicity with the Qatari government; further, the uprisings have revealed the speed with which social media—in particular Facebook and Twitter—are replacing broadcast media. It is now possible for “the people” to bypass both governments and news corporations (public and private) in relaying the news. Taken together, then, what our articles would seem to indicate is that, while the power of the nation-state has notionally been transcended via a range of new networking practices, this has yet to undermine its material power in any guaranteed way (witness recent counter-insurgencies in Libya, Bahrain, and Syria).True, the Internet may be used to facilitate transnational “actions” against the nation-state (individual or collective) through a variety of non-violent or violent actions, but nation-states around the world, and especially in Western Europe, are currently wielding immense power over their subjects through aggressive “austerity measures” which have the capacity to severely compromise the freedom and agency of the citizens concerned through widespread unemployment and cuts in social welfare provision. This said, several of our articles provide evidence that Appadurai’s more utopian prognoses are also taking shape. Alongside the troubling possibility that globalisation, and the technologies that support it, is effectively eroding “difference” (be this national or individual), there are the ever-increasing (and widely reported) instances of how digital technology is actively supporting local communities and actions around the world in ways that bypass the state. These range from the relatively modest collective action, “My Estonia”, featured in Pikner’s article, to the ways in which the Libyan diaspora in Manchester have made use of social media to publicise and support public protests in Tripoli (Harb). In other words, there is compelling material evidence that the heterogeneity that Appadurai predicted and hoped for has come to pass through the people’s active participation in (and partial ownership of) media practices. Citizens are now able to “interfere” in the representation of their lives as never before and, through the digital revolution, communicate with one another in ways that circumvent state-controlled broadcasting. We are therefore pleased to present the articles that follow as a lively, interdisciplinary and international “state-of-the-art” commentary on how the ongoing revolution in media and communication is responding to, and bringing into being, the processes and practices of globalisation predicted by Appadurai, Beck, Bauman, and others in the 1990s. The articles also speak to the changing nature of the world’s “diasporas” during this fifteen year time frame (1996-2011) and, we trust, will activate further debate (following Cohen) on the conceptual tensions that now manifestly exist between “virtual” and “material” diasporas and also between the “transnational” diasporas whose objective is to transcend the nation-state altogether and those that deploy social media for specifically local or national/ist ends. Acknowledgements With thanks to the Arts and Humanities Research Council (UK) for their generous funding of the “Moving Manchester” project (2006-10). Special thanks to Dr Kate Horsley (Lancaster University) for her invaluable assistance as ‘Web Editor’ in the production of this special issue (we could not have managed without you!) and also to Gail Ferguson (our copy-editor) for her expertise in the preparation of the final typescript. References Appadurai, Arjun. Modernity at Large: Cultural Dimensions of Globalisation. Minneapolis: U of Minnesota P, 1996. Bauman, Zygmunt. Globalization. Cambridge: Polity, 1998. Beck, Ulrich. What is Globalization? Trans. Patrick Camiller. Cambridge: Polity, 2000 (1997). Bromley, Roger. Narratives for a New Belonging: Diasporic Cultural Fictions. Edinburgh: Edinburgh UP, 2000. Cohen, Robin. Global Diasporas. 2nd ed. London and New York: Routledge, 2008. Deleuze, Gilles, and Felix Guattari. A Thousand Plateaus: Capitalism and Schizophrenia. Trans. Brian Massumi. Minneapolis: U of Minnesota P, 1987. Latour, Bruno. Reassembling the Social: An Introduction to Actor-Network Theory. Oxford: Oxford UP, 1995. Pearce, Lynne, ed. Devolving Identities: Feminist Readings in Home and Belonging. London: Ashgate, 2000. Pearce, Lynne. “‘Writing’ and ‘Region’ in the Twenty-First Century: Epistemological Reflections on Regionally Located Art and Literature in the Wake of the Digital Revolution.” European Journal of Cultural Studies 13.1 (2010): 27-41. Robertson, Robert. Globalization: Social Theory and Global Culture. London: Sage, 1992. Urry, John. Sociology beyond Societies. London: Routledge, 1999. Williams, Raymond. Dream Worlds: Mass Consumption in Late Nineteenth-Century France. Berkeley: U of California P, 1982.

Introduction Lillian Ng was born in Singapore and lived in Hong Kong and the United Kingdom before migrating to Australia with her daughter and Ah Mah Yin Jie (“Ah Mahs are a special group of people who took a vow to remain unmarried … [so they] could stick together as a group and make a living together” (Yu 118)). Ng studied classical Chinese at home, then went to an English school and later on studied Medicine. Her first book, Silver Sister (1994), was short-listed for the inaugural Angus & Robertson/Bookworld Prize in 1993 and won the Human Rights Award in 1995. Ng defines herself as a “Chinese living in Australia” (Yu 115). Food, flesh and meat are recurrent topics in Lillian Ng´s second novel Swallowing Clouds, published in 1997. These topics are related to desire and can be used as a synecdoche (a metaphor that describes part/whole relations) of the human body: food is needed to survive and pleasure can be obtained from other people´s bodies. This paper focuses on one type of meat and animal, pork and the pig, and on the relation between the two main characters, Syn and Zhu Zhiyee. Syn, the main character in the novel, is a Shanghainese student studying English in Sydney who becomes stranded after the Tiananmen Square massacre of June 1989. As she stops receiving money from her mother and fears repression if she goes back to China, she begins to work in a Chinese butcher shop, owned by Zhu Zhiyee, which brings her English lessons to a standstill. Syn and Zhu Zhiyee soon begin a two-year love affair, despite the fact that Zhu Zhiyee is married to KarLeng and has three daughters. The novel is structured as a prologue and four days, each of which has a different setting and temporal location. The prologue introduces the story of an adulterous woman who was punished to be drowned in a pig´s basket in the HuanPu River in the summer of 1918. As learnt later on, Syn is the reincarnation of this woman, whose purpose in life is to take revenge on men by taking their money. The four days, from the 4th to the 7th of June 1994, mark the duration of a trip to Beijing and Shanghai that Syn takes as member of an Australian expedition in order to visit her mother with the security of an Australian passport. During these four days, the reader learns about different Chinese landmarks, such as the Forbidden City, the Great Wall, the Ming Tomb and the Summer Palace, as well as some cultural events, such as a Chinese opera and eating typical foods like Peking duck. However, the bulk of the plot of the book deals with the sexual relationship, erotic games and fantasies of Syn and Zhu Zhiyee in the period between 1989 and 1992, as well as Syn´s final revenge in January 1993. Pigs The fact that Zhu Zhiyee is a butcher allows Lillian Ng to include references to pigs and pork throughout the novel. Some of them refer to the everyday work of a butcher shop, as the following examples illustrate: “Come in and help me with the carcass,” he [Zhu Zhiyee] pointed to a small suckling pig hung on a peg. Syn hesitated, not knowing how to handle the situation. “Take the whole pig with the peg,” he commanded (11).Under dazzling fluorescent tubes and bright spotlights, trays of red meat, pork chops and lamb cutlets sparkled like jewels … The trays edged with red cellophane frills and green underlay breathed vitality and colour into the slabs of pork ribs and fillets (15).Buckets of pig´s blood with a skim of froth took their place on the floor; gelled ones, like sliced cubes of large agate, sat in tin trays labelled in Chinese. More discreetly hidden were the gonads and penises of goats, bulls and pigs. (16)These examples are representative of Syn and Zhu Zhiyee´s relationship. The first quotation deals with their interaction: most of the time Zhu Zhiyee orders Syn how to act, either in the shop or in bed. The second extract describes the meat’s “vitality” and this is the quality of Syn's skin that mesmerised Zhu when he met her: “he was excited, electrified by the sight of her unblemished, translucent skin, unlined, smooth as silk. The glow of the warmth of human skin” (13). Moreover, the lights seem to completely illuminate the pieces of meat and this is the way Zhu Zhiyee leers at Syn´s body, as it can be read in the following extract: “he turned again to fix his gaze on Syn, which pierced and penetrated her head, her brain, eyes, permeated her whole body, seeped into her secret places and crevices” (14). The third excerpt introduces the sexual organs of some of the animals, which are sold to some customers for a high price. Meat is also sexualised by Zhu Zhiyee´s actions, such as his pinching the bottoms of chickens and comparing them with “sacrificial virgins”: “chickens, shamelessly stripped and trussed, hung by their necks, naked in their pimply white skin, seemed like sacrificial virgins. Syn often caught Zhu pinching their fleshy bottoms, while wrapping and serving them to the housewives” (15-16). Zhu also makes comments relating food with sex while he is having lunch next to Syn, which could be considered sexual harassment. All these extracts exemplify the relationship between Syn and Zhu Zhiyee: the orders, the looks and the implicit sexuality in the quotidian activities in the butcher´s shop. There are also a range of other expressions that include similes with the word `pig´ in Ng´s novel. One of the most recurrent is comparing the left arm and hand of Zhu Zhiyee´s mother with a “pig´s trotter”. Zhu Zhiyee´s mother is known as ZhuMa and Syn is very fond of her, as ZhuMa accepts her and likes her more than her own daughter-in-law. The comparison of ZhuMa´s arm and hand with a trotter may be explained by the fact that ZhuMa´s arm is swollen but also by the loving representation of pigs in Chinese culture. As Seung-Og Kim explains in his article “Burials, Pigs, and Political Prestige in Neolithic China”: In both Melanesia and Asia, pigs are viewed as a symbolic representation of human beings (Allen 1976: 42; Healey 1985; Rappaport 1967: 58; Roscoe 1989: 223-26). Piglets are treated as pets and receive a great deal of loving attention, and they in turn express affection for their human “parents.” They also share some physiological features with human beings, being omnivorous and highly reproductive (though humans do not usually have multiple litters) and similar internal anatomy (Roscoe 1989: 225). In short, pigs not only have a symbiotic relationship with humans biologically but also are of great importance symbolically (121). Consequently, pigs are held in high esteem, taken care of and loved. Therefore, comparing a part of a human´s body, such as an arm or a hand, for example, to a part of a pig´s body such as a pig´s trotter is not negative, but has positive connotations. Some descriptions of ZhuMa´s arm and hand can be read in the following excerpts: “As ZhuMa handed her the plate of cookies Syn saw her left arm, swollen like a pig´s trotter” (97); “Syn was horrified, and yet somewhat intrigued by this woman without a breast, with a pig´s trotter arm and a tummy like a chessboard” (99), “mimicking the act of writing with her pig-trotter hand” (99), and ZhuMa was praising the excellence of the opera, the singing, acting, the costumes, and the elaborate props, waving excitedly with her pig trotter arm and pointing with her stubby fingers while she talked. (170) Moreover, the expression “pig´s trotters” is also used as an example of the erotic fetishism with bound feet, as it can be seen in the following passage, which will be discussed below: I [Zhu Zhiyee] adore feet which are slender… they seem so soft, like pig´s trotters, so cute and loving, they play tricks on your mind. Imagine feeling them in bed under your blankets—soft cottonwool lumps, plump and cuddly, makes you want to stroke them like your lover´s hands … this was how the bound feet appealed to men, the erotic sensation when balanced on shoulders, clutched in palms, strung to the seat of a garden swing … no matter how ugly a woman is, her tiny elegant feet would win her many admirers (224).Besides writing about pigs and pork as part of the daily work of the butcher shop and using the expression “pig´s trotter”, “pig” is also linked to money in two sentences in the book. On the one hand, it is used to calculate a price and draw attention to the large amount it represents: “The blouse was very expensive—three hundred dollars, the total takings from selling a pig. Two pigs if he purchased two blouses” (197). On the other, it works as an adjective in the expression “piggy-bank”, the money box in the form of a pig, an animal that represents abundance and happiness in the Chinese culture: “She borrowed money from her neighbours, who emptied pieces of silver from their piggy-banks, their life savings”(54). Finally, the most frequent porcine expression in Ng´s Swallowing Clouds makes reference to being drowned in a pig´s basket, which represents 19 of the 33 references to pigs or pork that appear in the novel. The first three references appear in the prologue (ix, x, xii), where the reader learns the story of the last woman who was killed by drowning in a pig´s basket as a punishment for her adultery. After this, two references recount a soothsayer´s explanation to Syn about her nightmares and the fact that she is the reincarnation of that lady (67, 155); three references are made by Syn when she explains this story to Zhu Zhiyee and to her companion on the trip to Beijing and Shanghai (28, 154, 248); one refers to a feeling Syn has during sexual intercourse with Zhu Zhiyee (94); and one when the pig basket is compared to a cricket box, a wicker or wooden box used to carry or keep crickets in a house and listen to them singing (73). Furthermore, Syn reflects on the fact of drowning (65, 114, 115, 171, 172, 173, 197, 296) and compares her previous death with that of Concubine Pearl, the favourite of Emperor Guanxu, who was killed by order of his aunt, the Empress Dowager Cixi (76-77). The punishment of drowning in a pig´s basket can thus be understood as retribution for a transgression: a woman having an extra-marital relationship, going against the establishment and the boundaries of the authorised. Both the woman who is drowned in a pig´s basket in 1918 and Syn have extra-marital affairs and break society’s rules. However, the consequences are different: the concubine dies and Syn, her reincarnation, takes revenge. Desire, Transgression and Eroticism Xavier Pons writes about desire, repression, freedom and transgression in his book Messengers of Eros: Representations of Sex in Australian Writing (2009). In this text, he explains that desire can be understood as a positive or as a negative feeling. On the one hand, by experiencing desire, a person feels alive and has joy de vivre, and if that person is desired in return, then, the feelings of being accepted and happiness are also involved (13). On the other hand, desire is often repressed, as it may be considered evil, anarchic, an enemy of reason and an alienation from consciousness (14). According to Pons: Sometimes repression, in the form of censorship, comes from the outside—from society at large, or from particular social groups—because of desire´s subversive nature, because it is a force which, given a free rein, would threaten the higher purpose which a given society assigns to other (and usually ideological) forces … Repression may also come from the inside, via the internalization of censorship … desire is sometimes feared by the individual as a force alien to his/her true self which would leave him/her vulnerable to rejection or domination, and would result in loss of freedom (14).Consequently, when talking about sexual desire, the two main concepts to be dealt with are freedom and transgression. As Pons makes clear, “the desiring subject can be taken advantage of, manipulated like a puppet [as h]is or her freedom is in this sense limited by the experience of desire” (15). While some practices may be considered abusive, such as bondage or sado-masochism, they may be deliberately and freely chosen by the partners involved. In this case, these practices represent “an encounter between equals: dominance is no more than make-believe, and a certain amount of freedom (as much as is compatible with giving oneself up to one´s fantasies) is maintained throughout” (24). Consequently, the perception of freedom changes with each person and situation. What is transgressive depends on the norms in every culture and, as these evolve, so do the forms of transgression (Pons 43). Examples of transgressions can be: firstly, the separation of sex from love, adultery or female and male homosexuality, which happen with the free will of the partners; or, secondly, paedophilia, incest or bestiality, which imply abuse. Going against society’s norms involves taking risks, such as being discovered and exiled from society or feeling isolated as a result of a feeling of difference. As the norms change according to culture, time and person, an individual may transgress the rules and feel liberated, but later on do the same thing and feel alienated. As Pons declares, “transgressing the rules does not always lead to liberation or happiness—transgression can turn into a trap and turn out to be simply another kind of alienation” (46). In Swallowing Clouds, Zhu Zhiyee transgresses the social norms of his time by having an affair with Syn: firstly, because it is extra-marital, he and his wife, KarLeng, are Catholic and fidelity is one of the promises made when getting married; and, secondly, because he is Syn´s boss and his comments and ways of flirting with her could be considered sexual harassment. For two years, the affair is an escape from Zhu Zhiyee´s daily worries and stress and a liberation and fulfillment of his sexual desires. However, he introduces Syn to his mother and his sisters, who accept her and like her more than his wife. He feels trapped, though, when KarLeng guesses and threatens him with divorce. He cannot accept this as it would mean loss of face in their neighbourhood and society, and so he decides to abandon Syn. Syn´s transgression becomes a trap for her as Zhu, his mother and his sisters have become her only connection with the outside world in Australia and this alienates her from both the country she lives in and the people she knows. However, Syn´s transgression also turns into a trap for Zhu Zhiyee because she will not sign the documents to give him the house back and every month she sends proof of their affair to KarLeng in order to cause disruption in their household. This exposure could be compared with the humiliation suffered by the concubine when she was paraded in a pig´s basket before she was drowned in the HuangPu River. Furthermore, the reader does not know whether KarLeng finally divorces Zhu Zhiyee, which would be his drowning and loss of face and dishonour in front of society, but can imagine the humiliation, shame and disgrace KarLeng makes him feel every month. Pons also depicts eroticism as a form of transgression. In fact, erotic relations are a power game, and seduction can be a very effective weapon. As such, women can use seduction to obtain power and threaten the patriarchal order, which imposes on them patterns of behaviour, language and codes to follow. However, men also use seduction to get their own benefits, especially in political and social contexts. “Power has often been described as the ultimate aphrodisiac” (Pons 32) and this can be seen in many of the sexual games between Syn and Zhu Zhiyee in Swallowing Clouds, where Zhu Zhiyee is the active partner and Syn becomes little more than an object that gives pleasure. A clear reference to erotic fetishism is embedded in the above-mentioned quote on bound feet, which are compared to pig´s trotters. In fact, bound feet were so important in China in the millennia between the Song Dynasty (960-1276) and the early 20th century that “it was impossible to find a husband” (Holman) without them: “As women’s bound feet and shoes became the essence of feminine beauty, a fanatical aesthetic and sexual mystique developed around them. The bound foot was understood to be the most intimate and erotic part of the female anatomy, and wives, consorts and prostitutes were chosen solely on the size and shape of their feet” (Holman). Bound feet are associated in Ng’s novel with pig´s trotters and are described as “cute and loving … soft cottonwool lumps, plump and cuddly, [that] makes you want to stroke them like your lover´s hands” (224). This approach towards bound feet and, by extension, towards pig´s trotters, can be related to the fond feelings Melanesian and Asian cultures have towards piglets, which “are treated as pets and receive a great deal of loving attention” (Kim 121). Consequently, the bound feet can be considered a synecdoche for the fond feelings piglets inspire. Food and Sex The fact that Zhu Zhiyee is a butcher and works with different types of meat, including pork, that he chops it, sells it and gives cooking advice, is not gratuitous in the novel. He is used to being in close proximity to meat and death and seeing Syn’s pale skin through which he can trace her veins excites him. Her flesh is alive and represents, therefore, the opposite of meat. He wants to seduce her, which is human hunting, and he wants to study her, to enjoy her body, which can be compared to animals looking at their prey and deciding where to start eating from. Zhu´s desire for Syn seems destructive and dangerous. In the novel, bodies have a price: dead animals are paid for and eaten and their role is the satiation of human hunger. But humans, who are also animals, have a price as well: flesh is paid for, in the form of prostitution or being a mistress, and its aim is satiation of human sex. Generally speaking, sex in the novel is compared to food either in a direct or an indirect way, and making love is constantly compared to cooking, the preparation of food and eating (as in Pons 303). Many passages in Swallowing Clouds have cannibalistic connotations, all of these being used as metaphors for Zhu Zhiyee’s desire for Syn. As mentioned before, desire can be positive (as it makes a person feel alive) or negative (as a form of internal or social censorship). For Zhu Zhiyee, desire is positive and similar to a drug he is addicted to. For example, when Zhu and Syn make delivery rounds in an old Mazda van, he plays the recordings he made the previous night when they were having sex and tries to guess when each moan happened. Sex and Literature Pons explains that “to write about sex … is to address a host of issues—social, psychological and literary—which together pretty much define a culture” (6). Lillian Ng´s Swallowing Clouds addresses a series of issues. The first of these could be termed ‘the social’: Syn´s situation after the Tiananmen Massacre; her adulterous relationship with her boss and being treated and considered his mistress; the rapes in Inner Mongolia; different reasons for having an abortion; various forms of abuse, even by a mother of her mentally handicapped daughter; the loss of face; betrayal; and revenge. The second issue is the ‘psychological’, with the power relations and strategies used between different characters, psychological abuse, physical abuse, humiliation, and dependency. The third is the ‘literary’, as when the constant use of metaphors with Chinese cultural references becomes farcical, as Tseen Khoo notes in her article “Selling Sexotica” (2000: 164). Khoo explains that, “in the push for Swallowing Clouds to be many types of novels at once: [that is, erotica, touristic narrative and popular], it fails to be any one particularly successfully” (171). Swallowing Clouds is disturbing, full of stereotypes, and with repeated metaphors, and does not have a clear readership and, as Khoo states: “The explicit and implicit strategies behind the novel embody the enduring perceptions of what exotic, multicultural writing involves—sensationalism, voyeuristic pleasures, and a seemingly deliberate lack of rooted-ness in the Australian socioscape (172). Furthermore, Swallowing Clouds has also been defined as “oriental grunge, mostly because of the progression throughout the narrative from one gritty, exoticised sexual encounter to another” (Khoo 169-70).Other novels which have been described as “grunge” are Edward Berridge´s Lives of the Saints (1995), Justine Ettler´s The River Ophelia (1995), Linda Jaivin´s Eat Me (1995), Andrew McGahan´s Praise (1992) and 1988 (1995), Claire Mendes´ Drift Street (1995) or Christos Tsiolkas´ Loaded (1995) (Michael C). The word “grunge” has clear connotations with “dirtiness”—a further use of pig, but one that is not common in the novel. The vocabulary used during the sexual intercourse and games between Syn and Zhu Zhiyee is, however, coarse, and “the association of sex with coarseness is extremely common” (Pons 344). Pons states that “writing about sex is an attempt to overcome [the barriers of being ashamed of some human bodily functions], regarded as unnecessarily constrictive, and this is what makes it by nature transgressive, controversial” (344-45). Ng´s use of vocabulary in this novel is definitely controversial, indeed, so much so that it has been defined as banal or even farcical (Khoo 169-70).ConclusionThis paper has analysed the use of the words and expressions: “pig”, “pork” and “drowning in a pig’s basket” in Lillian Ng´s Swallowing Clouds. Moreover, the punishment of drowning in a pig’s basket has served as a means to study the topics of desire, transgression and eroticism, in relation to an analysis of the characters of Syn and Zhu Zhiyee, and their relationship. This discussion of various terminology relating to “pig” has also led to the study of the relationship between food and sex, and sex and literature, in this novel. Consequently, this paper has analysed the use of the term “pig” and has used it as a springboard for the analysis of some aspects of the novel together with different theoretical definitions and concepts. Acknowledgements A version of this paper was given at the International Congress Food for Thought, hosted by the Australian Studies Centre at the University of Barcelona in February 2010. References Allen, Bryan J. Information Flow and Innovation Diffusion in the East Sepic District, Papua New Guinea. PhD diss. Australian National University, Australia. 1976. Berridge, Edward. Lives of the Saints. St Lucia: U of Queensland P, 1995. C., Michael. “Toward a sound theory of Australian Grunge fiction.” [Weblog entry] Eurhythmania. 5 Mar. 2008. 4 Oct. 2010 http://eurhythmania.blogspot.com/2008/03/toward-sound-theory-of-australian.html. Ettler, Justine. The River Ophelia. Sydney: Picador, 1995. Healey, Christopher J. “Pigs, Cassowaries, and the Gift of the Flesh: A Symbolic Triad in Maring Cosmology.” Ethnology 24 (1985): 153-65. Holman, Jeanine. “Bound Feet.” Bound Feet: The History of a Curious, Erotic Custom. Ed. Joseph Rupp 2010. 11 Aug. 2010. http://www.josephrupp.com/history.html. Jaivin, Linda. Eat Me. Melbourne: The Text Publishing Company, 1995. Khoo, Tseen. “Selling Sexotica: Oriental Grunge and Suburbia in Lillian Ngs’ Swallowing Clouds.” Diaspora: Negotiating Asian-Australian. Ed. Helen Gilbert, Tseen Khoo, and Jaqueline Lo. St Lucia: U of Queensland P, 2000. 164-72. Khoo, Tseen; Danau Tanu, and Tien. "Re: Of pigs and porks” 5-9 Aug. 1997. Asian- Australian Discussion List Digest numbers 1447-1450. Apr. 2010 . Kim, Seung-Og. “Burials, Pigs, and Political Prestige in Neolithic China.” Current Anthopology 35.2 (Apr. 1994): 119-141. McGahan, Andrew. Praise. Sydney: Allen & Unwin, 1992. McGahan, Andrew. 1988. Sydney: Allen & Unwin, 1995. Mendes, Clare. Drift Street. Pymble: HarperCollins, 1995. Ng, Lillian. Swallowing Clouds. Ringwood: Penguin Books Australia,1997. Pons, Xavier. Messengers of Eros. Representations of Sex in Australian Writing. Newcastle upon Tyne: Cambridge Scholars Publishing, 2009. Rappaport, Roy. Pigs for the Ancestors. New Have: Yale UP, 1967. Roscoe, Paul B. “The Pig and the Long Yam: The Expansion of the Sepik Cultural Complex”. Ethnology 28 (1989): 219-31. Tsiolkas, Christos. Loaded. Sydney: Vintage, 1995. Yu, Ouyang. “An Interview with Lillian Ng.” Otherland Literary Journal 7, Bastard Moon. Essays on Chinese-Australian Writing (July 2001): 111-24.

There is no diagram that does not also include, besides the points it connects up, certain relatively free or unbounded points, points of creativity, change and resistance, and it is perhaps with these that we ought to begin in order to understand the whole picture. (Deleuze, “Foucault” 37) Monty Cantsin: Why do we use a pervert software robot to exploit our collective consensual mind? Letitia: Because we want the thief to be a digital entity. Monty Cantsin: But isn’t this really blasphemic? Letitia: Yes, but god – in our case a meta-cocktail of authorship and copyright – can not be trusted anymore. (Amazon Noir, “Dialogue”) In 2006, some 3,000 digital copies of books were silently “stolen” from online retailer Amazon.com by targeting vulnerabilities in the “Search inside the Book” feature from the company’s website. Over several weeks, between July and October, a specially designed software program bombarded the Search Inside!™ interface with multiple requests, assembling full versions of texts and distributing them across peer-to-peer networks (P2P). Rather than a purely malicious and anonymous hack, however, the “heist” was publicised as a tactical media performance, Amazon Noir, produced by self-proclaimed super-villains Paolo Cirio, Alessandro Ludovico, and Ubermorgen.com. While controversially directed at highlighting the infrastructures that materially enforce property rights and access to knowledge online, the exploit additionally interrogated its own interventionist status as theoretically and politically ambiguous. That the “thief” was represented as a digital entity or machinic process (operating on the very terrain where exchange is differentiated) and the emergent act of “piracy” was fictionalised through the genre of noir conveys something of the indeterminacy or immensurability of the event. In this short article, I discuss some political aspects of intellectual property in relation to the complexities of Amazon Noir, particularly in the context of control, technological action, and discourses of freedom. Software, Piracy As a force of distribution, the Internet is continually subject to controversies concerning flows and permutations of agency. While often directed by discourses cast in terms of either radical autonomy or control, the technical constitution of these digital systems is more regularly a case of establishing structures of operation, codified rules, or conditions of possibility; that is, of guiding social processes and relations (McKenzie, “Cutting Code” 1-19). Software, as a medium through which such communication unfolds and becomes organised, is difficult to conceptualise as a result of being so event-orientated. There lies a complicated logic of contingency and calculation at its centre, a dimension exacerbated by the global scale of informational networks, where the inability to comprehend an environment that exceeds the limits of individual experience is frequently expressed through desires, anxieties, paranoia. Unsurprisingly, cautionary accounts and moral panics on identity theft, email fraud, pornography, surveillance, hackers, and computer viruses are as commonplace as those narratives advocating user interactivity. When analysing digital systems, cultural theory often struggles to describe forces that dictate movement and relations between disparate entities composed by code, an aspect heightened by the intensive movement of informational networks where differences are worked out through the constant exposure to unpredictability and chance (Terranova, “Communication beyond Meaning”). Such volatility partially explains the recent turn to distribution in media theory, as once durable networks for constructing economic difference – organising information in space and time (“at a distance”), accelerating or delaying its delivery – appear contingent, unstable, or consistently irregular (Cubitt 194). Attributing actions to users, programmers, or the software itself is a difficult task when faced with these states of co-emergence, especially in the context of sharing knowledge and distributing media content. Exchanges between corporate entities, mainstream media, popular cultural producers, and legal institutions over P2P networks represent an ongoing controversy in this respect, with numerous stakeholders competing between investments in property, innovation, piracy, and publics. Beginning to understand this problematic landscape is an urgent task, especially in relation to the technological dynamics that organised and propel such antagonisms. In the influential fragment, “Postscript on the Societies of Control,” Gilles Deleuze describes the historical passage from modern forms of organised enclosure (the prison, clinic, factory) to the contemporary arrangement of relational apparatuses and open systems as being materially provoked by – but not limited to – the mass deployment of networked digital technologies. In his analysis, the disciplinary mode most famously described by Foucault is spatially extended to informational systems based on code and flexibility. According to Deleuze, these cybernetic machines are connected into apparatuses that aim for intrusive monitoring: “in a control-based system nothing’s left alone for long” (“Control and Becoming” 175). Such a constant networking of behaviour is described as a shift from “molds” to “modulation,” where controls become “a self-transmuting molding changing from one moment to the next, or like a sieve whose mesh varies from one point to another” (“Postscript” 179). Accordingly, the crisis underpinning civil institutions is consistent with the generalisation of disciplinary logics across social space, forming an intensive modulation of everyday life, but one ambiguously associated with socio-technical ensembles. The precise dynamics of this epistemic shift are significant in terms of political agency: while control implies an arrangement capable of absorbing massive contingency, a series of complex instabilities actually mark its operation. Noise, viral contamination, and piracy are identified as key points of discontinuity; they appear as divisions or “errors” that force change by promoting indeterminacies in a system that would otherwise appear infinitely calculable, programmable, and predictable. The rendering of piracy as a tactic of resistance, a technique capable of levelling out the uneven economic field of global capitalism, has become a predictable catch-cry for political activists. In their analysis of multitude, for instance, Antonio Negri and Michael Hardt describe the contradictions of post-Fordist production as conjuring forth a tendency for labour to “become common.” That is, as productivity depends on flexibility, communication, and cognitive skills, directed by the cultivation of an ideal entrepreneurial or flexible subject, the greater the possibilities for self-organised forms of living that significantly challenge its operation. In this case, intellectual property exemplifies such a spiralling paradoxical logic, since “the infinite reproducibility central to these immaterial forms of property directly undermines any such construction of scarcity” (Hardt and Negri 180). The implications of the filesharing program Napster, accordingly, are read as not merely directed toward theft, but in relation to the private character of the property itself; a kind of social piracy is perpetuated that is viewed as radically recomposing social resources and relations. Ravi Sundaram, a co-founder of the Sarai new media initiative in Delhi, has meanwhile drawn attention to the existence of “pirate modernities” capable of being actualised when individuals or local groups gain illegitimate access to distributive media technologies; these are worlds of “innovation and non-legality,” of electronic survival strategies that partake in cultures of dispersal and escape simple classification (94). Meanwhile, pirate entrepreneurs Magnus Eriksson and Rasmus Fleische – associated with the notorious Piratbyrn – have promoted the bleeding away of Hollywood profits through fully deployed P2P networks, with the intention of pushing filesharing dynamics to an extreme in order to radicalise the potential for social change (“Copies and Context”). From an aesthetic perspective, such activist theories are complemented by the affective register of appropriation art, a movement broadly conceived in terms of antagonistically liberating knowledge from the confines of intellectual property: “those who pirate and hijack owned material, attempting to free information, art, film, and music – the rhetoric of our cultural life – from what they see as the prison of private ownership” (Harold 114). These “unruly” escape attempts are pursued through various modes of engagement, from experimental performances with legislative infrastructures (i.e. Kembrew McLeod’s patenting of the phrase “freedom of expression”) to musical remix projects, such as the work of Negativland, John Oswald, RTMark, Detritus, Illegal Art, and the Evolution Control Committee. Amazon Noir, while similarly engaging with questions of ownership, is distinguished by specifically targeting information communication systems and finding “niches” or gaps between overlapping networks of control and economic governance. Hans Bernhard and Lizvlx from Ubermorgen.com (meaning ‘Day after Tomorrow,’ or ‘Super-Tomorrow’) actually describe their work as “research-based”: “we not are opportunistic, money-driven or success-driven, our central motivation is to gain as much information as possible as fast as possible as chaotic as possible and to redistribute this information via digital channels” (“Interview with Ubermorgen”). This has led to experiments like Google Will Eat Itself (2005) and the construction of the automated software thief against Amazon.com, as process-based explorations of technological action. Agency, Distribution Deleuze’s “postscript” on control has proven massively influential for new media art by introducing a series of key questions on power (or desire) and digital networks. As a social diagram, however, control should be understood as a partial rather than totalising map of relations, referring to the augmentation of disciplinary power in specific technological settings. While control is a conceptual regime that refers to open-ended terrains beyond the architectural locales of enclosure, implying a move toward informational networks, data solicitation, and cybernetic feedback, there remains a peculiar contingent dimension to its limits. For example, software code is typically designed to remain cycling until user input is provided. There is a specifically immanent and localised quality to its actions that might be taken as exemplary of control as a continuously modulating affective materialism. The outcome is a heightened sense of bounded emergencies that are either flattened out or absorbed through reconstitution; however, these are never linear gestures of containment. As Tiziana Terranova observes, control operates through multilayered mechanisms of order and organisation: “messy local assemblages and compositions, subjective and machinic, characterised by different types of psychic investments, that cannot be the subject of normative, pre-made political judgments, but which need to be thought anew again and again, each time, in specific dynamic compositions” (“Of Sense and Sensibility” 34). This event-orientated vitality accounts for the political ambitions of tactical media as opening out communication channels through selective “transversal” targeting. Amazon Noir, for that reason, is pitched specifically against the material processes of communication. The system used to harvest the content from “Search inside the Book” is described as “robot-perversion-technology,” based on a network of four servers around the globe, each with a specific function: one located in the United States that retrieved (or “sucked”) the books from the site, one in Russia that injected the assembled documents onto P2P networks and two in Europe that coordinated the action via intelligent automated programs (see “The Diagram”). According to the “villains,” the main goal was to steal all 150,000 books from Search Inside!™ then use the same technology to steal books from the “Google Print Service” (the exploit was limited only by the amount of technological resources financially available, but there are apparent plans to improve the technique by reinvesting the money received through the settlement with Amazon.com not to publicise the hack). In terms of informational culture, this system resembles a machinic process directed at redistributing copyright content; “The Diagram” visualises key processes that define digital piracy as an emergent phenomenon within an open-ended and responsive milieu. That is, the static image foregrounds something of the activity of copying being a technological action that complicates any analysis focusing purely on copyright as content. In this respect, intellectual property rights are revealed as being entangled within information architectures as communication management and cultural recombination – dissipated and enforced by a measured interplay between openness and obstruction, resonance and emergence (Terranova, “Communication beyond Meaning” 52). To understand data distribution requires an acknowledgement of these underlying nonhuman relations that allow for such informational exchanges. It requires an understanding of the permutations of agency carried along by digital entities. According to Lawrence Lessig’s influential argument, code is not merely an object of governance, but has an overt legislative function itself. Within the informational environments of software, “a law is defined, not through a statue, but through the code that governs the space” (20). These points of symmetry are understood as concretised social values: they are material standards that regulate flow. Similarly, Alexander Galloway describes computer protocols as non-institutional “etiquette for autonomous agents,” or “conventional rules that govern the set of possible behavior patterns within a heterogeneous system” (7). In his analysis, these agreed-upon standardised actions operate as a style of management fostered by contradiction: progressive though reactionary, encouraging diversity by striving for the universal, synonymous with possibility but completely predetermined, and so on (243-244). Needless to say, political uncertainties arise from a paradigm that generates internal material obscurities through a constant twinning of freedom and control. For Wendy Hui Kyong Chun, these Cold War systems subvert the possibilities for any actual experience of autonomy by generalising paranoia through constant intrusion and reducing social problems to questions of technological optimisation (1-30). In confrontation with these seemingly ubiquitous regulatory structures, cultural theory requires a critical vocabulary differentiated from computer engineering to account for the sociality that permeates through and concatenates technological realities. In his recent work on “mundane” devices, software and code, Adrian McKenzie introduces a relevant analytic approach in the concept of technological action as something that both abstracts and concretises relations in a diffusion of collective-individual forces. Drawing on the thought of French philosopher Gilbert Simondon, he uses the term “transduction” to identify a key characteristic of technology in the relational process of becoming, or ontogenesis. This is described as bringing together disparate things into composites of relations that evolve and propagate a structure throughout a domain, or “overflow existing modalities of perception and movement on many scales” (“Impersonal and Personal Forces in Technological Action” 201). Most importantly, these innovative diffusions or contagions occur by bridging states of difference or incompatibilities. Technological action, therefore, arises from a particular type of disjunctive relation between an entity and something external to itself: “in making this relation, technical action changes not only the ensemble, but also the form of life of its agent. Abstraction comes into being and begins to subsume or reconfigure existing relations between the inside and outside” (203). Here, reciprocal interactions between two states or dimensions actualise disparate potentials through metastability: an equilibrium that proliferates, unfolds, and drives individuation. While drawing on cybernetics and dealing with specific technological platforms, McKenzie’s work can be extended to describe the significance of informational devices throughout control societies as a whole, particularly as a predictive and future-orientated force that thrives on staged conflicts. Moreover, being a non-deterministic technical theory, it additionally speaks to new tendencies in regimes of production that harness cognition and cooperation through specially designed infrastructures to enact persistent innovation without any end-point, final goal or natural target (Thrift 283-295). Here, the interface between intellectual property and reproduction can be seen as a site of variation that weaves together disparate objects and entities by imbrication in social life itself. These are specific acts of interference that propel relations toward unforeseen conclusions by drawing on memories, attention spans, material-technical traits, and so on. The focus lies on performance, context, and design “as a continual process of tuning arrived at by distributed aspiration” (Thrift 295). This later point is demonstrated in recent scholarly treatments of filesharing networks as media ecologies. Kate Crawford, for instance, describes the movement of P2P as processual or adaptive, comparable to technological action, marked by key transitions from partially decentralised architectures such as Napster, to the fully distributed systems of Gnutella and seeded swarm-based networks like BitTorrent (30-39). Each of these technologies can be understood as a response to various legal incursions, producing radically dissimilar socio-technological dynamics and emergent trends for how agency is modulated by informational exchanges. Indeed, even these aberrant formations are characterised by modes of commodification that continually spillover and feedback on themselves, repositioning markets and commodities in doing so, from MP3s to iPods, P2P to broadband subscription rates. However, one key limitation of this ontological approach is apparent when dealing with the sheer scale of activity involved, where mass participation elicits certain degrees of obscurity and relative safety in numbers. This represents an obvious problem for analysis, as dynamics can easily be identified in the broadest conceptual sense, without any understanding of the specific contexts of usage, political impacts, and economic effects for participants in their everyday consumptive habits. Large-scale distributed ensembles are “problematic” in their technological constitution, as a result. They are sites of expansive overflow that provoke an equivalent individuation of thought, as the Recording Industry Association of America observes on their educational website: “because of the nature of the theft, the damage is not always easy to calculate but not hard to envision” (“Piracy”). The politics of the filesharing debate, in this sense, depends on the command of imaginaries; that is, being able to conceptualise an overarching structural consistency to a persistent and adaptive ecology. As a mode of tactical intervention, Amazon Noir dramatises these ambiguities by framing technological action through the fictional sensibilities of narrative genre. Ambiguity, Control The extensive use of imagery and iconography from “noir” can be understood as an explicit reference to the increasing criminalisation of copyright violation through digital technologies. However, the term also refers to the indistinct or uncertain effects produced by this tactical intervention: who are the “bad guys” or the “good guys”? Are positions like ‘good’ and ‘evil’ (something like freedom or tyranny) so easily identified and distinguished? As Paolo Cirio explains, this political disposition is deliberately kept obscure in the project: “it’s a representation of the actual ambiguity about copyright issues, where every case seems to lack a moral or ethical basis” (“Amazon Noir Interview”). While user communications made available on the site clearly identify culprits (describing the project as jeopardising arts funding, as both irresponsible and arrogant), the self-description of the artists as political “failures” highlights the uncertainty regarding the project’s qualities as a force of long-term social renewal: Lizvlx from Ubermorgen.com had daily shootouts with the global mass-media, Cirio continuously pushed the boundaries of copyright (books are just pixels on a screen or just ink on paper), Ludovico and Bernhard resisted kickback-bribes from powerful Amazon.com until they finally gave in and sold the technology for an undisclosed sum to Amazon. Betrayal, blasphemy and pessimism finally split the gang of bad guys. (“Press Release”) Here, the adaptive and flexible qualities of informatic commodities and computational systems of distribution are knowingly posited as critical limits; in a certain sense, the project fails technologically in order to succeed conceptually. From a cynical perspective, this might be interpreted as guaranteeing authenticity by insisting on the useless or non-instrumental quality of art. However, through this process, Amazon Noir illustrates how forces confined as exterior to control (virality, piracy, noncommunication) regularly operate as points of distinction to generate change and innovation. Just as hackers are legitimately employed to challenge the durability of network exchanges, malfunctions are relied upon as potential sources of future information. Indeed, the notion of demonstrating ‘autonomy’ by illustrating the shortcomings of software is entirely consistent with the logic of control as a modulating organisational diagram. These so-called “circuit breakers” are positioned as points of bifurcation that open up new systems and encompass a more general “abstract machine” or tendency governing contemporary capitalism (Parikka 300). As a consequence, the ambiguities of Amazon Noir emerge not just from the contrary articulation of intellectual property and digital technology, but additionally through the concept of thinking “resistance” simultaneously with regimes of control. This tension is apparent in Galloway’s analysis of the cybernetic machines that are synonymous with the operation of Deleuzian control societies – i.e. “computerised information management” – where tactical media are posited as potential modes of contestation against the tyranny of code, “able to exploit flaws in protocological and proprietary command and control, not to destroy technology, but to sculpt protocol and make it better suited to people’s real desires” (176). While pushing a system into a state of hypertrophy to reform digital architectures might represent a possible technique that produces a space through which to imagine something like “our” freedom, it still leaves unexamined the desire for reformation itself as nurtured by and produced through the coupling of cybernetics, information theory, and distributed networking. This draws into focus the significance of McKenzie’s Simondon-inspired cybernetic perspective on socio-technological ensembles as being always-already predetermined by and driven through asymmetries or difference. As Chun observes, consequently, there is no paradox between resistance and capture since “control and freedom are not opposites, but different sides of the same coin: just as discipline served as a grid on which liberty was established, control is the matrix that enables freedom as openness” (71). Why “openness” should be so readily equated with a state of being free represents a major unexamined presumption of digital culture, and leads to the associated predicament of attempting to think of how this freedom has become something one cannot not desire. If Amazon Noir has political currency in this context, however, it emerges from a capacity to recognise how informational networks channel desire, memories, and imaginative visions rather than just cultivated antagonisms and counterintuitive economics. As a final point, it is worth observing that the project was initiated without publicity until the settlement with Amazon.com. There is, as a consequence, nothing to suggest that this subversive “event” might have actually occurred, a feeling heightened by the abstractions of software entities. To the extent that we believe in “the big book heist,” that such an act is even possible, is a gauge through which the paranoia of control societies is illuminated as a longing or desire for autonomy. As Hakim Bey observes in his conceptualisation of “pirate utopias,” such fleeting encounters with the imaginaries of freedom flow back into the experience of the everyday as political instantiations of utopian hope. Amazon Noir, with all its underlying ethical ambiguities, presents us with a challenge to rethink these affective investments by considering our profound weaknesses to master the complexities and constant intrusions of control. It provides an opportunity to conceive of a future that begins with limits and limitations as immanently central, even foundational, to our deep interconnection with socio-technological ensembles. References “Amazon Noir – The Big Book Crime.” http://www.amazon-noir.com/>. Bey, Hakim. T.A.Z.: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism. New York: Autonomedia, 1991. Chun, Wendy Hui Kyong. Control and Freedom: Power and Paranoia in the Age of Fibre Optics. Cambridge, MA: MIT Press, 2006. Crawford, Kate. “Adaptation: Tracking the Ecologies of Music and Peer-to-Peer Networks.” Media International Australia 114 (2005): 30-39. Cubitt, Sean. “Distribution and Media Flows.” Cultural Politics 1.2 (2005): 193-214. Deleuze, Gilles. Foucault. Trans. Seán Hand. Minneapolis: U of Minnesota P, 1986. ———. “Control and Becoming.” Negotiations 1972-1990. Trans. Martin Joughin. New York: Columbia UP, 1995. 169-176. ———. “Postscript on the Societies of Control.” Negotiations 1972-1990. Trans. Martin Joughin. New York: Columbia UP, 1995. 177-182. Eriksson, Magnus, and Rasmus Fleische. “Copies and Context in the Age of Cultural Abundance.” Online posting. 5 June 2007. Nettime 25 Aug 2007. Galloway, Alexander. Protocol: How Control Exists after Decentralization. Cambridge, MA: MIT Press, 2004. Hardt, Michael, and Antonio Negri. Multitude: War and Democracy in the Age of Empire. New York: Penguin Press, 2004. Harold, Christine. OurSpace: Resisting the Corporate Control of Culture. Minneapolis: U of Minnesota P, 2007. Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. McKenzie, Adrian. Cutting Code: Software and Sociality. New York: Peter Lang, 2006. ———. “The Strange Meshing of Impersonal and Personal Forces in Technological Action.” Culture, Theory and Critique 47.2 (2006): 197-212. Parikka, Jussi. “Contagion and Repetition: On the Viral Logic of Network Culture.” Ephemera: Theory & Politics in Organization 7.2 (2007): 287-308. “Piracy Online.” Recording Industry Association of America. 28 Aug 2007. http://www.riaa.com/physicalpiracy.php>. Sundaram, Ravi. “Recycling Modernity: Pirate Electronic Cultures in India.” Sarai Reader 2001: The Public Domain. Delhi, Sarai Media Lab, 2001. 93-99. http://www.sarai.net>. Terranova, Tiziana. “Communication beyond Meaning: On the Cultural Politics of Information.” Social Text 22.3 (2004): 51-73. ———. “Of Sense and Sensibility: Immaterial Labour in Open Systems.” DATA Browser 03 – Curating Immateriality: The Work of the Curator in the Age of Network Systems. Ed. Joasia Krysa. New York: Autonomedia, 2006. 27-38. Thrift, Nigel. “Re-inventing Invention: New Tendencies in Capitalist Commodification.” Economy and Society 35.2 (2006): 279-306. Citation reference for this article MLA Style Dieter, Michael. "Amazon Noir: Piracy, Distribution, Control." M/C Journal 10.5 (2007). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0710/07-dieter.php>. APA Style Dieter, M. (Oct. 2007) "Amazon Noir: Piracy, Distribution, Control," M/C Journal, 10(5). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0710/07-dieter.php>.

IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circumstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisement to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisement was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisement to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

Introduction Ever-enduring advancements in science and technology promise to offer solutions to problems or simply to make life a bit easier. However, not every advancement has only positive effects, but can also have undesired, negative ramifications. This article will take a closer look at Deus Ex: Human Revolution (DXHR), a dystopian video game which promises to put players in the position of deciding whether the science of human enhancement is a way to try to play God, or whether it enables us “to become the Gods we’ve always been striving to be” (Eidos Montreal, “Deus Ex: Human Revolution”). In this article I will argue that DXHR creates a space in which players can virtually witness future technologies for human performance enhancement without the need to alter their own bodies. DXHR is special particularly in two respects: first, the developers have achieved a high credibility and scientific realism of the enhancement technologies depicted in the game which can be described as being “diegetic prototypes” (Kirby, “The Future Is Now ” 43); second, the game directly invites players to reflect upon the impact and morality of human enhancement. It does so through a story in line with the cyberpunk genre, which envisions not only the potential benefits of an emergent technology, but has an even stronger focus on the negative contingencies. The game and its developers foresee a near-future society that is split into two fractions due to human enhancement technologies which come in the form of neuro-implants and mechanical prosthetics; and they foresee a near-future setting in which people are socially and economically forced to undergo enhancement surgery in order to keep up with the augmented competition. DXHR is set in the year 2027 and the player takes control of Adam Jensen, an ex-SWAT police officer who is now the chief of security of Sarif Industries, one of the world's leading biotechnology companies that produce enhancement technologies. Augmented terrorists attack Sarif Industries, abduct the head scientists, and nearly kill Jensen. Jensen merely survives because his boss puts him through enhancement surgery, which replaces many parts of his body with mechanical augmentations. In the course of the game it becomes clear that Jensen has been augmented beyond any life-saving necessity that grants him superhuman abilities and allows him to find and defeat the terrorists, but the augmentations also challenge his humanity. Is Jensen a human, a cyborg, or has he become more machine than man? DXHR grants players the illusion of immersion into a virtual world in which augmentations exist as a matter of fact and in which a certain level of control can be practiced. Players take up the role of a character distinctly more powerful and capable than the person in control, exceeding the limits of human abilities. The superior abilities are a result of scientific and technological advancements implying that every man or woman is able to attain the same abilities by simply acquiring augmentations. Thus, with the help of the playable character, Adam Jensen, the game lets players experience augmentations without any irreparable damages done to their bodies, but the experience will leave a lasting impression on players regarding the science of human enhancement. The experience with augmentations happens through and benefits from the effect of “virtual witnessing”: The technology of virtual witnessing involves the production in a reader’s mind of such an image of an experimental scene as obviates the necessity for either direct witness or replication. Through virtual witnessing the multiplication of witnesses could be, in principle, unlimited. (Shapin and Schaffer 60) In other words, simply by reading about and/or seeing scientific advancements, audiences can witness them without having to be present at the site of creation. The video game, hereby, is itself the medium of virtual witnessing whereby audiences can experience scientific advancements. Nevertheless, the video game is not just about reading or seeing potential future enhancement technologies, but permits players to virtually test-drive augmentations—to actually try out three-dimensionally rendered prototypes on a virtual body. In order to justify this thesis, a couple of things need to be clarified that explain in which ways the virtual witnessing of fictional enhancements in DXHR is a valid claim. Getting into the Game First I want to briefly describe how I investigated the stated issue. I have undertaken an auto-ethnography (Ellis, Adams, and Bochner) of DXHR, which concretely means that I have analytically played DXHR in an explorative fashion (Aarseth) trying to discover as many elements on human enhancement that the game has to offer. This method requires not only close observation of the virtual environment and documentation through field notes and screenshots, but also self-reflection of the actions that I chose to take and that were offered to me in the course of the game. An essential part of analytically playing a game is to be aware that the material requires “the activity of an actual player in order to be accessible for scrutiny” (Iversen), and that the player’s input fundamentally shapes the gaming experience (Juul 42). The meaning of the game is contingent upon the contribution of the player, especially in times in which digital games grant players more and more freedom in terms of narrative construction. In contrast to traditional narrative, the game poses an active challenge to the player which entails the need to become better in relation to the game’s mechanics and hence “studying games … implies interacting with the game rules and exploring the possibilities created by these rules, in addition to studying the graphical codes or the narration that unfolds” (Malliet). It is important to highlight that, although the visual representation of human enhancement technologies has an enormous potential impact on the player’s experience, it is not the only crucial element. Next to the representational shell, the core of the game, i.e. “how game rules and interactions with game objects and other players are structured” (Mäyrä 165), shapes the virtual witnessing of the augmentations in just an important way. Finally, the empirical material that was collected was analyzed and interpreted with the help of close-reading (Bizzocchi and Tanenbaum 395). In addition to the game itself, I have enriched my empirical material with interviews of developers of the game that are partly freely available on the Internet, and with the promotional material such as the trailers and a website (Eidos Montreal, “Sarif Industries”) that was released prior to the game. Sociotechnical Imaginaries In this case study of DXHR I have not only investigated how augmented bodies and enhancement technologies are represented in this specific video game, but also attempted to uncover which “sociotechnical imaginaries” (Jasanoff and Kim) underlie the game and support the virtual witnessing experience. Sociotechnical imaginaries are defined as “collectively imagined forms of social life and social order reflected in the design and fulfillment of nation-specific scientific and/or technological projects” (Jasanoff and Kim 120). The concept appeared to be suitable for this study as it covers and includes “promises, visions and expectations of future possibilities” (Jasanoff and Kim 122) of a technology as well as “implicit understandings of what is good or desirable in the social world writ large” (Jasanoff and Kim 122–23). The game draws upon several imaginaries of human enhancement. For example, the most basic imaginary in the game is that advanced engineered prosthetics and implants will be able to not only remedy dysfunctional parts of the human body, but will be able to upgrade these. Apart from this idea, the two prevailing sociotechnical imaginaries that forward the narrative can be subsumed as the transhumanist and the purist imaginary. The latter views human enhancement, with the help of science and technology, as unnatural and as a threat to humanity particularly through the power that it grants to individuals, while the former transports the opposing view. Transhumanism is: the intellectual and cultural movement that affirms the possibility and desirability of fundamentally improving the human condition through applied reason, especially by developing and making widely available technologies to eliminate aging and to greatly enhance human intellectual, physical, and psychological capacities. (Chrislenko et al.) The transhumanist imaginary in the game views technological development of the body as another step in the human evolution, not as something abhorrent to nature, but a fundamental human quality. Similar ideas can be found in the writings of Sigmund Freud and Arnold Gehlen, who both view the human being’s need to improve as part of its culture. Gehlen described the human as a “Mängelwesen”—a ‘deficient’ creature—who is, in contrast to other species, not specialized to a specific environment, but has the ability to adapt to nearly every situation because of this deficiency (Menne, Trutwin, and Türk). Freud even denoted the human as a “Prothesengott”—a god of prostheses: By means of all his tools, man makes his own organs more perfect—both the motor and the sensory—or else removes the obstacles in the way of their activity. Machinery places gigantic power at his disposal which, like his muscles, he can employ in any direction; ships and aircraft have the effect that neither air nor water can prevent his traversing them. With spectacles he corrects the defects of the lens in his own eyes; with telescopes he looks at far distances; with the microscope he overcomes the limitations in visibility due to the structure of his retina. (Freud 15) Returning to DXHR, how do the sociotechnical imaginaries matter for the player? Primarily, the imaginaries cannot be avoided as they pervade nearly every element in the game, from the main story that hinges upon human enhancement over the many optional side missions, to contextual elements such as a conference on “the next steps in human evolution” (Eidos Montreal, “Deus Ex: Human Revolution”). Most importantly, it impacts the player’s view in a crucial way. Human enhancement technologies are presented as controversial, neither exclusively good nor bad, which require reflection and perhaps even legal regulation. In this way, DXHR can be seen as offering the player a restricted building set of sociotechnical imaginaries of human enhancement, whereby the protagonist, Adam Jensen, becomes the player’s vessel to construct one’s own individual imaginary. In the end the player is forced to choose one of four outcomes to complete the game, and this choice can be quite difficult to make. Anticipation of the Future It is not unusual for video games to feature futuristic technologies that do not exist in the real world, but what makes DXHR distinct from others is that the developers have included an extent of information that goes beyond any game playing necessity (see Figures 1 & 2). Moreover, the information is not fictional but the developers have taken strategic steps to make it credible. Mary DeMarle, the narrative designer, explained at the San Diego Comic-Con in 2011, that a timeline of augmentation was created during the production phase in which the present state of technology was extrapolated into the future. In small incremental steps the developers have anticipated which enhancement technologies might be potentially feasible by the year 2027. Their efforts were supported by the science consultant, Will Rosellini, who voluntarily approached the development team to help. Being a neuroscientist, he could not have been a more fitting candidate for the job as he is actively working and researching in the biotechnology sector. He has co-founded two companies, MicroTransponder Inc., which produces tiny implantable wireless devices to interface with the nervous system to remedy diseases (see Rosellini’s presentation at the 2011 Comic-Con) and Rosellini Scientific, which funds, researches and develops advanced technological healthcare solutions (Rosellini; Rosellini Scientific). Due to the timeline which has been embedded explicitly and implicitly, no augmentation appears as a disembodied technology without history in the game. For example, although the protagonist wears top-notch military arm prostheses that appear very human-like, this prosthesis is depicted as one of the latest iterations and many non-playable characters possess arm prostheses that appear a lot older, cruder and more industrial than those of Jensen. Furthermore, an extensive description employing scientific jargon for each of the augmentations can be read on the augmentation overview screen, which includes details about the material composition and bodily locations of the augmentations. Figure 1: More Info Section of the Cybernetic Arm Prosthesis as it appears in-game (all screenshots taken with permission from Deus Ex: Human Revolution (2011), courtesy of Eidos Montreal) More details are provided through eBooks, which are presented in the form of scientific articles or conference proceedings, for which the explorative gamer is also rewarded with valuable experience points upon finding which are used to activate and upgrade augmentations. The eBooks also reflect the timeline as each eBook is equipped with a year of publication between 2001 and 2022. Despite the fact that these articles have been supposedly written by a fictional character, the information is authentic and taken from actual scientific research papers, whereby some of these articles even include a proper scientific citation. Figure 2: Example of a Darrow eBook The fact that a scientist was involved in the production of the game allows classifying the augmentations as “diegetic prototypes” which are “cinematic depictions of future technologies … that demonstrate to large public audiences a technology’s need, benevolence and viability” (“The Future Is Now” 43). Diegetic prototypes are fictional, on-screen depictions of technologies that do not exist in that form in real life and have been created with the help of a science consultant. They have been placed in movies to allay anxieties and doubts and perhaps to even provoke a longing in audiences to see depicted technologies become reality (Kirby, “The Future Is Now” 43). Of course the aesthetic appearance of the prototypes has an impact on audiences’s desire, and particularly the artificial arms of Jensen that have been designed in an alluring fashion as can be seen in the following figure: Figure 3: Adam Jensen and arm prosthesis An important fact about diegetic prototypes—and about prototypes (see Suchman, Trigg, and Blomberg) in general—is that they are put to specific use and are embedded and presented in an identifiable social context. Technological objects in cinema are at once both completely artificial—all aspects of their depiction are controlled—and normalized as practical objects. Characters treat these technologies as a ‘natural’ part of their landscape and interact with these prototypes as if they are everyday parts of their world. … fictional characters are ‘socializing’ technological artifacts by creating meanings for the audience, ‘which is tantamount to making the artifacts socially relevant’. (Kirby, “Lab Coats” 196) The power of DXHR is that the diegetic prototypes—the augmentations—are not only based on real world scientific developments and contextualized in a virtual social space, but that the player has the opportunity to handle the augmentations. Virtual Testing Virtual witnessing of the not-yet-existent augmentations is supported by scientific descriptions, articles, and the appearance of the technologies in DXHR, but the moral and ethical engagement is established by the player’s ability to actively use the augmentations and by the provision of choice how to use them. As mentioned, most of the augmentations are inactive and must first be activated by accumulating and spending experience points on them. This requires the player to make reflections on the potential usage and how a particular augmentation will lead to the successful completion of a mission. This means that the player has to constantly decide how s/he wants to play the game. Do I want to be able to hack terminals and computers or do I rather prefer getting mission-critical information by confronting people in conversation? Do I want to search for routes where I can avoid enemy detection or do I rather prefer taking the direct route through the enemy lines with heavy guns in hands? This recurring reflection of which augmentation to choose and their continuous usage throughout the game causes the selected augmentations to become valuable and precious to the player because they transform from augmentations into frequently used tools that facilitate challenge and reduce difficulty of certain situations. In addition, the developers have ensured that no matter which approach is taken, it will always lead to success. This way the role-playing elements of the game are accentuated and each player will construct their own version of Jensen. However, it may be argued that DXHR goes beyond mere character building. There is a breadth of information and opinions on human enhancement offered, but also choices that are made invite players to reflect upon the topic of human enhancement. Among the most conspicuous instances in the game, that involve the player’s choice, are the conversations with other non-playable characters. These are events in the game which require the player to choose one out of three responses for Jensen, and hence, these determine to some extent Jensen’s attitude towards human enhancement. Thus, in the course of the game players might discover their own conviction and might compose their own imaginary of human enhancement. Conclusion This article has explored that DXHR enables players to experience augmentations without being modified themselves. The game is filled with various sociotechnical imaginaries of prosthetic and neurological human enhancement technologies. The relevance of these imaginaries is increased by a high degree of credibility as a science consultant has ensured that the fictional augmentations are founded upon real world scientific advancements. The main story, and much of the virtual world, hinge upon the existence and controversy of these sorts of technologies. Finally, the medium ‘videogame’ allows taking control of an individual, who is heavily augmented with diegetic prototypes of future enhancement technologies, and it also allows using and testing the increased abilities in various situations and challenges. All these elements combined enable players to virtually witness not-yet-existent, future augmentations safely in the present without the need to undertake any alterations of their own bodies. This, in addition to the fact that the technologies are depicted in an appealing fashion, may create a desire in players to see these augmentations become reality. Nevertheless, DXHR sparks an important incentive to critically think about the future of human enhancement technologies.References Aarseth, Espen. “Playing Research: Methodological Approaches to Game Analysis.” DAC Conference, Melbourne, 2003. 14 Apr. 2013 ‹http://hypertext.rmit.edu.au/dac/papers/Aarseth.pdf›. Bizzocchi, J., and J. Tanenbaum. “Mass Effect 2: A Case Study in the Design of Game Narrative.” Bulletin of Science, Technology & Society 32.5 (2012): 393-404. Chrislenko, Alexander, et al. “Transhumanist FAQ.” humanity+. 2001. 18 July 2013 ‹http://humanityplus.org/philosophy/transhumanist-faq/#top›. Eidos Montreal. “Deus Ex: Human Revolution.” Square Enix. 2011. PC. ———. “Welcome to Sarif Industries: Envisioning a New Future.” 2011. 14 Apr. 2013 ‹http://www.sarifindustries.com›. Ellis, Carolyn, Tony E. Adams, and Arthur P. Bochner. “Autoethnography: An Overview.” Forum Qualitative Sozialforschung 12.1 (2010): n. pag. 9 July 2013 ‹http://www.qualitative-research.net/index.php/fqs/article/view/1589/3095›. Freud, Sigmund. Civilization and Its Discontents. Aylesbury, England: Chrysoma Associates Limited, 1929. Iversen, Sara Mosberg. “In the Double Grip of the Game: Challenge and Fallout 3.” Game Studies 12.2 (2012): n. pag. 5 Feb. 2013 ‹http://gamestudies.org/1202/articles/in_the_double_grip_of_the_game›. Jasanoff, Sheila, and Sang-Hyun Kim. “Containing the Atom: Sociotechnical Imaginaries and Nuclear Power in the United States and South Korea.” Minerva 47.2 (2009): 119–146. Juul, Jesper. “A Clash between Game and Narrative.” MA thesis. U of Copenhagen, 1999. 29 May 2013 ‹http://www.jesperjuul.net/thesis/›. Kirby, David A. Lab Coats in Hollywood. Cambridge, Massachusetts: MIT Press, 2011. ———. “The Future Is Now : Diegetic Prototypes and the Role of Popular Films in Generating Real-World Technological Development.” Social Studies of Science 40.1 (2010): 41-70. Malliet, Steven. “Adapting the Principles of Ludology to the Method of Video Game Content Analysis Content.” Game Studies 7.1 (2007): n. pag. 28 May 2013 ‹http://gamestudies.org/0701/articles/malliet›. Mäyrä, F. An Introduction to Game Studies. London: Sage, 2008. Menne, Erwin, Werner Trutwin, and Hans J. Türk. Philosophisches Kolleg Band 4 Anthropologie. Düsseldorf: Patmos, 1986. Rosellini, Will, and Mary DeMarle. “Deus Ex: Human Revolution.” Comic Con. San Diego, 2011. Panel. Rosellini Scientific. “Prevent. Restore. Enhance.” 2013. 25 May 2013 ‹http://www.roselliniscientific.com›. Shapin, Steven, and Simon Schaffer. Leviathan and the Air Pump: Hobbes, Boyle and the Experimental Life. Princeton: Princeton University Press, 1985. Suchman, Lucy, Randall Trigg, and Jeanette Blomberg. “Working Artefacts: Ethnomethods of the Prototype.” The British Journal of Sociology 53.2 (2002): 163-79. Image Credits All screenshots taken with permission from Deus Ex: Human Revolution (2011), courtesy of Eidos Montreal.

In 1956, John Cage predicted that “in the future, records will be made from records” (Duffel, 202). Certainly, musical creativity has always involved a certain amount of appropriation and adaptation of previous works. For example, Vivaldi appropriated and adapted the “Cum sancto spiritu” fugue of Ruggieri’s Gloria (Burnett, 4; Forbes, 261). If stuck for a guitar solo on stage, Keith Richards admits that he’ll adapt Buddy Holly for his own purposes (Street, 135). Similarly, Nirvana adapted the opening riff from Killing Jokes’ “Eighties” for their song “Come as You Are”. Musical “quotation” is actively encouraged in jazz, and contemporary hip-hop would not exist if the genre’s pioneers and progenitors had not plundered and adapted existing recorded music. Sampling technologies, however, have taken musical adaptation a step further and realised Cage’s prediction. Hardware and software samplers have developed to the stage where any piece of audio can be appropriated and adapted to suit the creative impulses of the sampling musician (or samplist). The practice of sampling challenges established notions of creativity, with whole albums created with no original musical input as most would understand it—literally “records made from records.” Sample-based music is premised on adapting audio plundered from the cultural environment. This paper explores the ways in which technology is used to adapt previous recordings into new ones, and how musicians themselves have adapted to the potentials of digital technology for exploring alternative approaches to musical creativity. Sampling is frequently defined as “the process of converting an analog signal to a digital format.” While this definition remains true, it does not acknowledge the prevalence of digital media. The “analogue to digital” method of sampling requires a microphone or instrument to be recorded directly into a sampler. Digital media, however, simplifies the process. For example, a samplist can download a video from YouTube and rip the audio track for editing, slicing, and manipulation, all using software within the noiseless digital environment of the computer. Perhaps it is more prudent to describe sampling simply as the process of capturing sound. Regardless of the process, once a sound is loaded into a sampler (hardware or software) it can be replayed using a MIDI keyboard, trigger pad or sequencer. Use of the sampled sound, however, need not be a faithful rendition or clone of the original. At the most basic level of manipulation, the duration and pitch of sounds can be altered. The digital processes that are implemented into the Roland VariOS Phrase Sampler allow samplists to eliminate the pitch or melodic quality of a sampled phrase. The phrase can then be melodically redefined as the samplist sees fit: adapted to a new tempo, key signature, and context or genre. Similarly, software such as Propellerhead’s ReCycle slices drum beats into individual hits for use with a loop sampler such as Reason’s Dr Rex module. Once loaded into Dr Rex, the individual original drum sounds can be used to program a new beat divorced from the syncopation of the original drum beat. Further, the individual slices can be subjected to pitch, envelope (a component that shapes the volume of the sound over time) and filter (a component that emphasises and suppresses certain frequencies) control, thus an existing drum beat can easily be adapted to play a new rhythm at any tempo. For example, this rhythm was created from slicing up and rearranging Clyde Stubblefield’s classic break from James Brown’s “Funky Drummer”. Sonic adaptation of digital information is not necessarily confined to the auditory realm. An audio editor such as Sony’s Sound Forge is able to open any file format as raw audio. For example, a Word document or a Flash file could be opened with the data interpreted as audio. Admittedly, the majority of results obtained are harsh white noise, but there is scope for serendipitous anomalies such as a glitchy beat that can be extracted and further manipulated by audio software. Audiopaint is an additive synthesis application created by Nicolas Fournel for converting digital images into audio. Each pixel position and colour is translated into information designating frequency (pitch), amplitude (volume) and pan position in the stereo image. The user can determine which one of the three RGB channels corresponds to either of the stereo channels. Further, the oscillator for the wave form can be either the default sine wave or an existing audio file such as a drum loop can be used. The oscillator shapes the end result, responding to the dynamics of the sine wave or the audio file. Although Audiopaint labours under the same caveat as with the use of raw audio, the software can produce some interesting results. Both approaches to sound generation present results that challenge distinctions between “musical sound” and “noise”. Sampling is also a cultural practice, a relatively recent form of adaptation extending out of a time honoured creative aesthetic that borrows, quotes and appropriates from existing works to create new ones. Different fields of production, as well as different commentators, variously use terms such as “co-creative media”, “cumulative authorship”, and “derivative works” with regard to creations that to one extent or another utilise existing works in the production of new ones (Coombe; Morris; Woodmansee). The extent of the sampling may range from subtle influence to dominating significance within the new work, but the constant principle remains: an existing work is appropriated and adapted to fit the needs of the secondary creator. Proponents of what may be broadly referred to as the “free culture” movement argue that creativity and innovation inherently relies on the appropriation and adaptation of existing works (for example, see Lessig, Future of Ideas; Lessig, Free Culture; McLeod, Freedom of Expression; Vaidhyanathan). For example, Gwen Stefani’s 2004 release “Rich Girl” is based on Louchie Lou and Michie One’s 1994 single of the same title. Lou and One’s “Rich Girl”, in turn, is a reggae dance hall adaptation of “If I Were a Rich Man” from Fiddler on the Roof. Stefani’s “na na na” vocal riff shares the same melody as the “Ya ha deedle deedle, bubba bubba deedle deedle dum” riff from Fiddler on the Roof. Samantha Mumba adapted David Bowie’s “Ashes to Ashes” for her second single “Body II Body”. Similarly, Richard X adapted Tubeway Army’s “Are ‘Friends’ Electric?’ and Adina Howard’s “Freak Like Me” for a career saving single for Sugababes. Digital technologies enable and even promote the adaptation of existing works (Morris). The ease of appropriating and manipulating digital audio files has given rise to a form of music known variously as mash-up, bootleg, or bastard pop. Mash-ups are the most recent stage in a history of musical appropriation and they epitomise the sampling aesthetic. Typically produced in bedroom computer-based studios, mash-up artists use software such as Acid or Cool Edit Pro to cut up digital music files and reassemble the fragments to create new songs, arbitrarily adding self-composed parts if desired. Comprised almost exclusively from sections of captured music, mash-ups have been referred to as “fictional pop music” because they conjure up scenarios where, for example, Destiny’s Child jams in a Seattle garage with Nirvana or the Spice Girls perform with Nine Inch Nails (Petridis). Once the initial humour of the novelty has passed, the results can be deeply alluring. Mash-ups extract the distinctive characteristics of songs and place them in new, innovative contexts. As Dale Lawrence writes: “the vocals are often taken from largely reviled or ignored sources—cornball acts like Aguilera or Destiny’s Child—and recast in wildly unlikely contexts … where against all odds, they actually work”. Similarly, Crawford argues that “part of the art is to combine the greatest possible aesthetic dissonance with the maximum musical harmony. The pleasure for listeners is in discovering unlikely artistic complementarities and revisiting their musical memories in mutated forms” (36). Sometimes the adaptation works in the favour of the sampled artist: George Clinton claims that because of sampling he is more popular now than in 1976—“the sampling made us big again” (Green). The creative aspect of mash-ups is unlike that usually associated with musical composition and has more in common with DJing. In an effort to further clarify this aspect, we may regard DJ mixes as “mash-ups on the fly.” When Grandmaster Flash recorded his quilt-pop masterpiece, “Adventures of Grandmaster Flash on the Wheels of Steel,” it was recorded while he performed live, demonstrating his precision and skill with turntables. Modern audio editing software facilitates the capture and storage of sound, allowing mash-up artists to manipulate sounds bytes outside of “real-time” and the live performance parameters within which Flash worked. Thus, the creative element is not the traditional arrangement of chords and parts, but rather “audio contexts”. If, as Riley pessimistically suggests, “there are no new chords to be played, there are no new song structures to be developed, there are no new stories to be told, and there are no new themes to explore,” then perhaps it is understandable that artists have searched for new forms of musical creativity. The notes and chords of mash-ups are segments of existing works sequenced together to produce inter-layered contexts rather than purely tonal patterns. The merit of mash-up culture lies in its function of deconstructing the boundaries of genre and providing new musical possibilities. The process of mashing-up genres functions to critique contemporary music culture by “pointing a finger at how stifled and obvious the current musical landscape has become. … Suddenly rap doesn’t have to be set to predictable funk beats, pop/R&B ballads don’t have to come wrapped in cheese, garage melodies don’t have to recycle the Ramones” (Lawrence). According to Theodor Adorno, the Frankfurt School critic, popular music (of his time) was irretrievably simplistic and constructed from easily interchangeable, modular components (McLeod, “Confessions”, 86). A standardised and repetitive approach to musical composition fosters a mode of consumption dubbed by Adorno “quotation listening” and characterised by passive acceptance of, and obsession with, a song’s riffs (44-5). As noted by Em McAvan, Adorno’s analysis elevates the producer over the consumer, portraying a culture industry controlling a passive audience through standardised products (McAvan). The characteristics that Adorno observed in the popular music of his time are classic traits of contemporary popular music. Mash-up artists, however, are not representative of Adorno’s producers for a passive audience, instead opting to wrest creative control from composers and the recording industry and adapt existing songs in pursuit of their own creative impulses. Although mash-up productions may consciously or unconsciously criticise the current state of popular music, they necessarily exist in creative symbiosis with the commercial genres: “if pop songs weren’t simple and formulaic, it would be much harder for mashup bedroom auteurs to do their job” (McLeod, “Confessions”, 86). Arguably, when creating mash-ups, some individuals are expressing their dissatisfaction with the stagnation of the pop industry and are instead working to create music that they as consumers wish to hear. Sample-based music—as an exercise in adaptation—encourages a Foucauldian questioning of the composer’s authority over their musical texts. Recorded music is typically a passive medium in which the consumer receives the music in its original, unaltered form. DJ Dangermouse (Brian Burton) breached this pact to create his Grey Album, which is a mash-up of an a cappella version of Jay-Z’s Black Album and the Beatles’ eponymous album (also known as the White Album). Dangermouse says that “every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somewhere.” In deconstructing the Beatles’ songs, Dangermouse turned the recordings into a palette for creating his own new work, adapting audio fragments to suit his creative impulses. As Joanna Demers writes, “refashioning these sounds and reorganising them into new sonic phrases and sentences, he creates acoustic mosaics that in most instances are still traceable to the Beatles source, yet are unmistakeably distinct from it” (139-40). Dangermouse’s approach is symptomatic of what Schütze refers to as remix culture: an open challenge to a culture predicated on exclusive ownership, authorship, and controlled distribution … . Against ownership it upholds an ethic of creative borrowing and sharing. Against the original it holds out an open process of recombination and creative transformation. It equally calls into question the categories, rifts and borders between high and low cultures, pop and elitist art practices, as well as blurring lines between artistic disciplines. Using just a laptop, an audio editor and a calculator, Gregg Gillis, a.k.a. Girl Talk, created the Night Ripper album using samples from 167 artists (Dombale). Although all the songs on Night Ripper are blatantly sampled-based, Gillis sees his creations as “original things” (Dombale). The adaptation of sampled fragments culled from the Top 40 is part of Gillis’ creative process: “It’s not about who created this source originally, it’s about recontextualising—creating new music. … I’ve always tried to make my own songs” (Dombale). Gillis states that his music has no political message, but is a reflection of his enthusiasm for pop music: “It’s a celebration of everything Top 40, that’s the point” (Dombale). Gillis’ “celebratory” exercises in creativity echo those of various fan-fiction authors who celebrate the characters and worlds that constitute popular culture. Adaptation through sampling is not always centred solely on music. Sydney-based Tom Compagnoni, a.k.a. Wax Audio, adapted a variety of sound bytes from politicians and media personalities including George W. Bush, Alexander Downer, Alan Jones, Ray Hadley, and John Howard in the creation of his Mediacracy E.P.. In one particular instance, Compagnoni used a myriad of samples culled from various media appearances by George W. Bush to recreate the vocals for John Lennon’s Imagine. Created in early 2005, the track, which features speeded-up instrumental samples from a karaoke version of Lennon’s original, is an immediate irony fuelled comment on the invasion of Iraq. The rationale underpinning the song is further emphasised when “Imagine This” reprises into “Let’s Give Peace a Chance” interspersed with short vocal fragments of “Come Together”. Compagnoni justifies his adaptations by presenting appropriated media sound bytes that deliberately set out to demonstrate the way information is manipulated to present any particular point of view. Playing the media like an instrument, Wax Audio juxtaposes found sounds in a way that forces the listener to confront the bias, contradiction and sensationalism inherent in their daily intake of media information. … Oh yeah—and it’s bloody funny hearing George W Bush sing “Imagine”. Notwithstanding the humorous quality of the songs, Mediacracy represents a creative outlet for Compagnoni’s political opinions that is emphasised by the adaptation of Lennon’s song. Through his adaptation, Compagnoni revitalises Lennon’s sentiments about the Vietnam War and superimposes them onto the US policy on Iraq. An interesting aspect of sampled-based music is the re-occurrence of particular samples across various productions, which demonstrates that the same fragment can be adapted for a plethora of musical contexts. For example, Clyde Stubblefield’s “Funky Drummer” break is reputed to be the most sampled break in the world. The break from 1960s soul/funk band the Winstons’ “Amen Brother” (the B-side to their 1969 release “Color Him Father”), however, is another candidate for the title of “most sampled break”. The “Amen break” was revived with the advent of the sampler. Having featured heavily in early hip-hop records such as “Words of Wisdom” by Third Base and “Straight Out of Compton” by NWA, the break “appears quite adaptable to a range of music genres and tastes” (Harrison, 9m 46s). Beginning in the early 1990s, adaptations of this break became a constant of jungle music as sampling technology developed to facilitate more complex operations (Harrison, 5m 52s). The break features on Shy FX’s “Original Nutta”, L Double & Younghead’s “New Style”, Squarepusher’s “Big Acid”, and a cover version of Led Zepplin’s “Whole Lotta Love” by Jane’s Addiction front man Perry Farrell. This is to name but a few tracks that have adapted the break. Wikipedia offers a list of songs employing an adaptation of the “Amen break”. This list, however, falls short of the “hundreds of tracks” argued for by Nate Harrison, who notes that “an entire subculture based on this one drum loop … six seconds from 1969” has developed (8m 45s). The “Amen break” is so ubiquitous that, much like the twelve bar blues structure, it has become a foundational element of an entire genre and has been adapted to satisfy a plethora of creative impulses. The sheer prevalence of the “Amen break” simultaneously illustrates the creative nature of music adaptation as well as the potentials for adaptation stemming from digital technology such as the sampler. The cut-up and rearrangement aspect of creative sampling technology at once suggests the original but also something new and different. Sampling in general, and the phenomenon of the “Amen break” in particular, ensures the longevity of the original sources; sampled-based music exhibits characteristics acquired from the source materials, yet the illegitimate offspring are not their parents. Sampling as a technology for creatively adapting existing forms of audio has encouraged alternative approaches to musical composition. Further, it has given rise to a new breed of musician that has adapted to technologies of adaptation. Mash-up artists and samplists demonstrate that recorded music is not simply a fixed or read-only product but one that can be freed from the composer’s original arrangement to be adapted and reconfigured. Many mash-up artists such as Gregg Gillis are not trained musicians, but their ears are honed from enthusiastic consumption of music. Individuals such as DJ Dangermouse, Gregg Gillis and Tom Compagnoni appropriate, reshape and re-present the surrounding soundscape to suit diverse creative urges, thereby adapting the passive medium of recorded sound into an active production tool. References Adorno, Theodor. “On the Fetish Character in Music and the Regression of Listening.” The Culture Industry: Selected Essays on Mass Culture. Ed. J. Bernstein. London, New York: Routledge, 1991. Burnett, Henry. “Ruggieri and Vivaldi: Two Venetian Gloria Settings.” American Choral Review 30 (1988): 3. Compagnoni, Tom. “Wax Audio: Mediacracy.” Wax Audio. 2005. 2 Apr. 2007 http://www.waxaudio.com.au/downloads/mediacracy>. Coombe, Rosemary. The Cultural Life of Intellectual Properties. Durham, London: Duke University Press, 1998. Demers, Joanna. Steal This Music: How Intellectual Property Law Affects Musical Creativity. Athens, London: University of Georgia Press, 2006. Dombale, Ryan. “Interview: Girl Talk.” Pitchfork. 2006. 9 Jan. 2007 http://www.pitchforkmedia.com/article/feature/37785/Interview_Interview_Girl_Talk>. Duffel, Daniel. Making Music with Samples. San Francisco: Backbeat Books, 2005. Forbes, Anne-Marie. “A Venetian Festal Gloria: Antonio Lotti’s Gloria in D Major.” Music Research: New Directions for a New Century. Eds. M. Ewans, R. Halton, and J. Phillips. London: Cambridge Scholars Press, 2004. Green, Robert. “George Clinton: Ambassador from the Mothership.” Synthesis. Undated. 15 Sep. 2005 http://www.synthesis.net/music/story.php?type=story&id=70>. Harrison, Nate. “Can I Get an Amen?” Nate Harrison. 2004. 8 Jan. 2007 http://www.nkhstudio.com>. Lawrence, Dale. “On Mashups.” Nuvo. 2002. 8 Jan. 2007 http://www.nuvo.net/articles/article_292/>. Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001. ———. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press, 2004. McAvan, Em. “Boulevard of Broken Songs: Mash-Ups as Textual Re-Appropriation of Popular Music Culture.” M/C Journal 9.6 (2006) 3 Apr. 2007 http://journal.media-culture.org.au/0612/02-mcavan.php>. McLeod, Kembrew. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28.79. ———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books. Morris, Sue. “Co-Creative Media: Online Multiplayer Computer Game Culture.” Scan 1.1 (2004). 8 Jan. 2007 http://scan.net.au/scan/journal/display_article.php?recordID=16>. Petridis, Alexis. “Pop Will Eat Itself.” The Guardian UK. March 2003. 8 Jan. 2007 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html>. Riley. “Pop Will Eat Itself—Or Will It?”. The Truth Unknown (archived at Archive.org). 2003. 9 Jan. 2007 http://web.archive.org/web/20030624154252 /www.thetruthunknown.com/viewnews.asp?articleid=79>. Schütze, Bernard. “Samples from the Heap: Notes on Recycling the Detritus of a Remixed Culture”. Horizon Zero 2003. 8 Jan. 2007 http://www.horizonzero.ca/textsite/remix.php?tlang=0&is=8&file=5>. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York, London: New York University Press, 2003. Woodmansee, Martha. “On the Author Effect: Recovering Collectivity.” The Construction of Authorship: Textual Appropriation in Law and Literature. Eds. M. Woodmansee, P. Jaszi and P. Durham; London: Duke University Press, 1994. 15. Citation reference for this article MLA Style Collins, Steve. "Amen to That: Sampling and Adapting the Past." M/C Journal 10.2 (2007). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0705/09-collins.php>. APA Style Collins, S. (May 2007) "Amen to That: Sampling and Adapting the Past," M/C Journal, 10(2). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0705/09-collins.php>.

This article explores how fat women protesting challenges norms of womanhood, the place of women in society, and who has the power to have their say in public spaces. We use the term fat as a political reclamation; Fat Studies scholars and fat activists prefer the term fat, over the normative term “overweight” and the pathologising term “obese/obesity” (Lee and Pausé para 3). Who is and who isn’t fat, we suggest, is best left to self-determination, although it is generally accepted by fat activists that the term is most appropriately adopted by individuals who are unable to buy clothes in any store they choose. Using a tweet from conservative commentator Ann Coulter as a leaping-off point, we examine the narratives around women in the public sphere and explore how fat bodies might transgress further the norms set by society. The public representations of women in politics and protest are then are set in the context of ‘activist wisdom’ (Maddison and Scalmer) from two sides of the globe. Activist wisdom gives preference to the lived knowledge and experience of activists as tools to understand social movements. It seeks to draw theoretical implications from the practical actions of those on the ground. In centring the experiences of ourselves and other activists, we hope to expand existing understandings of body politics, gender, and political power in this piece. It is important in researching social movements to look both at the representations of protest and protestors in all forms of media as this is the ‘public face’ of movements, but also to examine the reflections of the individuals who collectively put their weight behind bringing social change.A few days after the 45th President of the United States was elected, people around the world spilled into the streets and participated in protests; precursors to the Women’s March which would take place the following January. Pictures of such marches were shared via social media, demonstrating the worldwide protest against the racism, misogyny, and overall oppressiveness, of the newly elected leader. Not everyone was supportive of these protests though; one such conservative commentator, Ann Coulter, shared this tweet: Image1: A tweet from Ann Coulter; the tweet contains a picture of a group of protestors, holding signs protesting Trump, white supremacy, and for the rights of immigrants. In front of the group, holding a megaphone is a woman. Below the picture, the text reads, “Without fat girls, there would be no protests”.Coulter continued on with two more tweets, sharing pictures of other girls protesting and suggesting that the protestors needed a diet programme. Kivan Bay (“Without Fat Girls”) suggested that perhaps Coulter was implying that skinny girls do not have time to protest because they are too busy doing skinny girl things, like buying jackets or trying on sweaters. Or perhaps Coulter was arguing that fat girls are too visible, too loud, and too big, to be taken seriously in their protests. These tweets provide a point of illustration for how fat women protesting challenge norms of womanhood, the place of women in society, and who has the power to have their say in public spaces While Coulter’s tweet was most likely intended as a hostile personal attack on political grounds, we find it useful in its foregrounding of gender, bodies and protest which we consider in this article, beginning with a review of fat girls’ role in social justice movements.Across the world, we can point to fat women who engage in activism related to body politics and more. Australian fat filmmaker and activist Kelli Jean Drinkwater makes documentaries, such as Aquaporko! and Nothing to Lose, that queer fat embodiment and confronts body norms. Newly elected Ontario MPP Jill Andrew has been fighting for equal rights for queer people and fat people in Canada for decades. Nigerian Latasha Ngwube founded About That Curvy Life, Africa’s leading body positive and empowerment site, and has organised plus-size fashion show events at Heineken Lagos Fashion and Design Week in Nigeria in 2016 and the Glitz Africa Fashion Week in Ghana in 2017. Fat women have been putting their bodies on the line for the rights of others to live, work, and love. American Heather Heyer was protesting the hate that white nationalists represent and the danger they posed to her friends, family, and neighbours when she died at a rally in Charlottesville, North Carolina in late 2017 (Caron). When Heyer was killed by one of those white nationalists, they declared that she was fat, and therefore her body size was lauded loudly as justification for her death (Bay, “How Nazis Use”; Spangler).Fat women protesting is not new. For example, the Fat Underground was a group of “radical fat feminist women”, who split off from the more conservative NAAFA (National Association to Aid Fat Americans) in the 1970s (Simic 18). The group educated the public about weight science, harassed weight-loss companies, and disrupted academic seminars on obesity. The Fat Underground made their first public appearance at a Women’s Equality Day in Los Angeles, taking over the stage at the public event to accuse the medical profession of murdering Cass Elliot, the lead singer of the folk music group, The Mamas and the Papas (Dean and Buss). In 1973, the Fat Underground produced the Fat Liberation Manifesto. This Manifesto began by declaring that they believed “that fat people are full entitled to human respect and recognition” (Freespirit and Aldebaran 341).Women have long been disavowed, or discouraged, from participating in the public sphere (Ginzberg; van Acker) or seen as “intruders or outsiders to the tough world of politics” (van Acker 118). The feminist slogan the personal is political was intended to shed light on the role that women needed to play in the public spheres of education, employment, and government (Caha 22). Across the world, the acceptance of women within the public sphere has been varied due to cultural, political, and religious, preferences and restrictions (Agenda Feminist Media Collective). Limited acceptance of women in the public sphere has historically been granted by those ‘anointed’ by a male family member or patron (Fountaine 47).Anti-feminists are quick to disavow women being in public spaces, preferring to assign them the role as helpmeet to male political elite. As Schlafly (in Rowland 30) notes: “A Positive Woman cannot defeat a man in a wrestling or boxing match, but she can motivate him, inspire him, encourage him, teach him, restrain him, reward him, and have power over him that he can never achieve over her with all his muscle.” This idea of women working behind the scenes has been very strong in New Zealand where the ‘sternly worded’ letter is favoured over street protest. An acceptable route for women’s activism was working within existing political institutions (Grey), with activity being ‘hidden’ inside government offices such as the Ministry of Women’s Affairs (Schuster, 23). But women’s movement organisations that engage in even the mildest form of disruptive protest are decried (Grey; van Acker).One way women have been accepted into public space is as the moral guardians or change agents of the entire political realm (Bliss; Ginzberg; van Acker; Ledwith). From the early suffrage movements both political actors and media representations highlighted women were more principled and conciliatory than men, and in many cases had a moral compass based on restraint. Cartoons showed women in the suffrage movement ‘sweeping up’ and ‘cleaning house’ (Sheppard 123). Groups like the Women’s Christian Temperance Union were celebrated for protesting against the demon drink and anti-pornography campaigners like Patricia Bartlett were seen as acceptable voices of moral reason (Moynihan). And as Cunnison and Stageman (in Ledwith 193) note, women bring a “culture of femininity to trade unions … an alternative culture, derived from the particularity of their lives as women and experiences of caring and subordination”. This role of moral guardian often derived from women as ‘mothers’, responsible for the physical and moral well-being of the nation.The body itself has been a sight of protest for women including fights for bodily autonomy in their medical decisions, reproductive justice, and to live lives free from physical and sexual abuse, have long been met with criticisms of being unladylike or inappropriate. Early examples decried in NZ include the women’s clothing movement which formed part of the suffrage movement. In the second half of the 20th century it was the freedom trash can protests that started the myth of ‘women burning their bras’ which defied acceptable feminine norms (Sawer and Grey). Recent examples of women protesting for body rights include #MeToo and Time’s Up. Both movements protest the lack of bodily autonomy women can assert when men believe they are entitled to women’s bodies for their entertainment, enjoyment, and pleasure. And both movements have received considerable backlash by those who suggest it is a witch hunt that might ensnare otherwise innocent men, or those who are worried that the real victims are white men who are being left behind (see Garber; Haussegger). Women who advocate for bodily autonomy, including access to contraception and abortion, are often held up as morally irresponsible. As Archdeacon Bullock (cited in Smyth 55) asserted, “A woman should pay for her fun.”Many individuals believe that the stigma and discrimination fat people face are the consequences they sow from their own behaviours (Crandall 892); that fat people are fat because they have made poor decisions, being too indulgent with food and too lazy to exercise (Crandall 883). Therefore, fat people, like women, should have to pay for their fun. Fat women find themselves at this intersection, and are often judged more harshly for their weight than fat men (Tiggemann and Rothblum). Examining Coulter’s tweet with this perspective in mind, it can easily be read as an attempt to put fat girl protestors back into their place. It can also be read as a warning. Don’t go making too much noise or you may be labelled as fat. Presenting troublesome women as fat has a long history within political art and depictions. Marianne (the symbol of the French Republic) was depicted as fat and ugly; she also reinforced an anti-suffragist position (Chenut 441). These images are effective because of our societal views on fatness (Kyrölä). Fatness is undesirable, unworthy of love and attention, and a representation of poor character, lack of willpower, and an absence of discipline (Murray 14; Pausé, “Rebel Heart” para 1).Fat women who protest transgress rules around body size, gender norms, and the appropriate place for women in society. Take as an example the experiences of one of the authors of this piece, Sandra Grey, who was thrust in to political limelight nationally with the Campaign for MMP (Grey and Fitzsimmons) and when elected as the President of the New Zealand Tertiary Education Union in 2011. Sandra is a trade union activist who breaches too many norms set for the “good woman protestor,” as well as the norms for being a “good fat woman”. She looms large on a stage – literally – and holds enough power in public protest to make a crowd of 7,000 people “jump to left”, chant, sing, and march. In response, some perceive Sandra less as a tactical and strategic leader of the union movement, and more as the “jolly fat woman” who entertains, MCs, and leads public events. Though even in this role, she has been criticised for being too loud, too much, too big.These criticisms are loudest when Sandra is alongside other fat female bodies. When posting on social media photos with fellow trade union members the comments often note the need of the group to “go on a diet”. The collective fatness also brings comments about “not wanting to fuck any of that group of fat cows”. There is something politically and socially dangerous about fat women en masse. This was behind the responses to Sandra’s first public appearance as the President of TEU when one of the male union members remarked “Clearly you have to be a fat dyke to run this union.” The four top elected and appointed positions in the TEU have been women for eight years now and both their fatness and perceived sexuality present as a threat in a once male-dominated space. Even when not numerically dominant, unions are public spaces dominated by a “masculine culture … underpinned by the undervaluation of ‘women’s worth’ and notions of womanhood ‘defined in domesticity’” (Cockburn in Kirton 273-4). Sandra’s experiences in public space show that the derision and methods of putting fat girls back in their place varies dependent on whether the challenge to power is posed by a single fat body with positional power and a group of fat bodies with collective power.Fat Girls Are the FutureOn the other side of the world, Tara Vilhjálmsdóttir is protesting to change the law in Iceland. Tara believes that fat people should be protected against discrimination in public and private settings. Using social media such as Facebook and Instagram, Tara takes her message, and her activism, to her thousands of followers (Keller, 434; Pausé, “Rebel Heart”). And through mainstream media, she pushes back on fatphobia rhetoric and applies pressure on the government to classify weight as a protected status under the law.After a lifetime of living “under the oppression of diet culture,” Tara began her activism in 2010 (Vilhjálmsdóttir). She had suffered real harm from diet culture, developing an eating disorder as a teen and being told through her treatment for it that her fears as a fat woman – that she had no future, that fat people experienced discrimination and stigma – were unfounded. But Tara’s lived experiences demonstrated fat stigma and discrimination were real.In 2012, she co-founded the Icelandic Association for Body Respect, which promotes body positivity and fights weight stigma in Iceland. The group uses a mixture of real life and online tools; organising petitions, running campaigns against the Icelandic version of The Biggest Loser, and campaigning for weight to be a protected class in the Icelandic constitution. The Association has increased the visibility of the dangers of diet culture and the harm of fat stigma. They laid the groundwork that led to changing the human rights policy for the city of Reykjavík; fat people cannot be discriminated against in employment settings within government jobs. As the city is one of the largest employers in the country, this was a large step forward for fat rights.Tara does receive her fair share of hate messages; she’s shared that she’s amazed at the lengths people will go to misunderstand what she is saying (Vilhjálmsdóttir). “This isn’t about hurt feelings; I’m not insulted [by fat stigma]. It’s about [fat stigma] affecting the livelihood of fat people and the structural discrimination they face” (Vilhjálmsdóttir). She collects the hateful comments she receives online through screenshots and shares them in an album on her page. She believes it is important to keep a repository to demonstrate to others that the hatred towards fat people is real. But the hate she receives only fuels her work more. As does the encouragement she receives from people, both in Iceland and abroad. And she is not alone; fat activists across the world are using Web 2.0 tools to change the conversation around fatness and demand civil rights for fat people (Pausé, “Rebel Heart”; Pausé, “Live to Tell").Using Web 2.0 tools as a way to protest and engage in activism is an example of oppositional technologics; a “political praxis of resistance being woven into low-tech, amateur, hybrid, alternative subcultural feminist networks” (Garrison 151). Fat activists use social media to engage in anti-assimilationist activism and build communities of practice online in ways that would not be possible in real life (Pausé, “Express Yourself” 1). This is especially useful for those whose protests sit at the intersections of oppressions (Keller 435; Pausé, “Rebel Heart” para 19). Online protests have the ability to travel the globe quickly, providing opportunities for connections between protests and spreading protests across the globe, such as SlutWalks in 2011-2012 (Schuster 19). And online spaces open up unlimited venues for women to participate more freely in protest than other forms (Harris 479; Schuster 16; Garrison 162).Whether online or offline, women are represented as dangerous in the political sphere when they act without male champions breaching norms of femininity, when their involvement challenges the role of woman as moral guardians, and when they make the body the site of protest. Women must ‘do politics’ politely, with utmost control, and of course caringly; that is they must play their ‘designated roles’. Whether or not you fit the gendered norms of political life affects how your protest is perceived through the media (van Acker). Coulter’s tweet loudly proclaimed that the fat ‘girls’ protesting the election of the 45th President of the United States were unworthy, out of control, and not worthy of attention (ironic, then, as her tweet caused considerable conversation about protest, fatness, and the reasons not to like the President-Elect). What the Coulter tweet demonstrates is that fat women are perceived as doubly-problematic in public space, both as fat and as women. They do not do politics in a way that is befitting womanhood – they are too visible and loud; they are not moral guardians of conservative values; and, their bodies challenge masculine power.ReferencesAgenda Feminist Media Collective. “Women in Society: Public Debate.” Agenda: Empowering Women for Gender Equity 10 (1991): 31-44.Bay, Kivan. “How Nazis Use Fat to Excuse Violence.” Medium, 7 Feb. 2018. 1 May 2018 <https://medium.com/@kivabay/how-nazis-use-fat-to-excuse-violence-b7da7d18fea8>.———. “Without Fat Girls, There Would Be No Protests.” Bullshit.ist, 13 Nov. 2016. 16 May 2018 <https://bullshit.ist/without-fat-girls-there-would-be-no-protests-e66690de539a>.Bliss, Katherine Elaine. Compromised Positions: Prostitution, Public Health, and Gender Politics in Revolutionary Mexico City. Penn State Press, 2010.Caha, Omer. 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IllegitimacyBack in 1987, Gregory Bateson argued that:Kurt Vonnegut gives us wary advice – that we should be careful what we pretend because we become what we pretend. And something like that, some sort of self-fulfilment, occurs in all organisations and human cultures. What people presume to be ‘human’ is what they will build in as premises of their social arrangements, and what they build in is sure to be learned, is sure to become a part of the character of those who participate. (178)The human capacity to marginalise and discriminate against others on the basis of innate and constructed characteristics is evident from the long history of discrimination against people whose existence is ‘illegitimate’, defined as being outside the law. What is inside or outside the law depends upon the context under consideration. For example, in societies such as ancient Greece and the antebellum United States, where slavery was legal, people who were constructed as ‘slaves’ could legitimately be treated very differently from ‘citizens’: free people who benefit from a range of human rights (Northup). The discernment of what is legitimate from that which is illegitimate is thus implicated within the law but extends into the wider experience of community life and is evident within the civil structures through which society is organised and regulated.The division between the legitimate and illegitimate is an arbitrary one, susceptible to changing circumstances. Within recent memory a romantic/sexual relationship between two people of the same sex was constructed as illegitimate and actively persecuted. This was particularly the case for same-sex attracted men, since the societies regulating these relationships generally permitted women a wider repertoire of emotional response than men were allowed. Even when lesbian and gay relationships were legalised, they were constructed as less legitimate in the sense that they often had different rules around the age of consent for homosexual and heterosexual couples. In Australia, the refusal to allow same sex couples to marry perpetuates ways in which these relationships are constructed as illegitimate – beyond the remit of the legislation concerning marriage.The archetypal incidence of illegitimacy has historically referred to people born out of wedlock. The circumstances of birth, for example whether a person was born as a result of a legally-sanctioned marital relationship or not, could have ramifications throughout an individual’s life. Stories abound (for example, Cookson) of the implications of being illegitimate. In some social stings, such as Catherine Cookson’s north-eastern England at the turn of the twentieth century, illegitimate children were often shunned. Parents frequently refused permission for their (legitimate) children to play with illegitimate classmates, as if these children born out of wedlock embodied a contaminating variety of evil. Illegitimate children were treated differently in the law in matters of inheritance, for example, and may still be. They frequently lived in fear of needing to show a birth certificate to gain a passport, for example, or to marry. Sometimes, it was at this point in adult life, that a person first discovered their illegitimacy, changing their entire understanding of their family and their place in the world. It might be possible to argue that the emphasis upon the legitimacy of a birth has lessened in proportion to an acceptance of genetic markers as an indicator of biological paternity, but that is not the endeavour here.Given the arbitrariness and mutability of the division between legitimacy and illegitimacy as a constructed boundary, it is policed by social and legal sanctions. Boundaries, such as the differentiation between the raw and the cooked (Lévi-Strauss), or S/Z (Barthes), or purity and danger (Douglas), serve important cultural functions and also convey critical information about the societies that enforce them. Categories of person, place or thing which are closest to boundaries between the legitimate and the illegitimate can prompt existential anxiety since the capacity to discern between these categories is most challenged at the margins. The legal shenanigans which can result speak volumes for which aspects of life have the potential to unsettle a culture. One example of this which is writ large in the recent history of Australia is our treatment of refugees and asylum seekers and the impact of this upon Australia’s multicultural project.Foreshadowing the sexual connotations of the illegitimate, one of us has written elsewhere (Green, ‘Bordering on the Inconceivable’) about the inconceivability of the Howard administration’s ‘Pacific solution’. This used legal devices to rewrite Australia’s borders to limit access to the rights accruing to refugees upon landing in a safe haven entitling them to seek asylum. Internationally condemned as an illegitimate construction of an artificial ‘migration zone’, this policy has been revisited and made more brutal under the Abbot regime with at least two people – Reza Barati and Hamid Khazaei – dying in the past year in what is supposed to be a place of safety provided by Australian authorities under their legal obligations to those fleeing from persecution. Crock points out, echoing the discourse of illegitimacy, that it is and always has been inappropriate to label “undocumented asylum seekers” as “‘illegal’” because: “until such people cross the border onto Australian territory, the language of illegality is nonsense. People who have no visas to enter Australia can hardly be ‘illegals’ until they enter Australia” (77). For Australians who identify in some ways – religion, culture, fellow feeling – with the detainees incarcerated on Nauru and Manus Island, it is hard to ignore the disparity between the government’s treatment of visa overstayers and “illegals” who arrive by boat (Wilson). It is a comparatively short step to construct this disparity as reflecting upon the legitimacy within Australia of communities who share salient characteristics with detained asylum seekers: “The overwhelmingly negative discourse which links asylum seekers, Islam and terrorism” (McKay, Thomas & Kneebone, 129). Some communities feel themselves constructed in the public and political spheres as less legitimately Australian than others. This is particularly true of communities where members can be identified via markers of visible difference, including indicators of ethnic, cultural and religious identities: “a group who [some 585 respondent Australians …] perceived would maintain their own languages, customs and traditions […] this cultural diversity posed an extreme threat to Australian national identity” (McKay, Thomas & Kneebone, 129). Where a community shares salient characteristics such as ethnicity or religion with many detained asylum seekers they can become fearful of the discourses around keeping borders strong and protecting Australia from illegitimate entrants. MethodologyThe qualitative fieldwork upon which this paper is based took place some 6-8 years ago (2006-2008), but the project remains one of the most recent and extensive studies of its kind. There are no grounds for believing that any of the findings are less valid than previously. On the contrary, if political actions are constructed as a proxy for mainstream public consent, opinions have become more polarised and have hardened. Ten focus groups were held involving 86 participants with a variety of backgrounds including differences in age, gender, religious observance, religious identification and ethnicity. Four focus groups involved solely Muslim participants; six drew from the wider Australian community. The aim was to examine the response of different communities to mainstream Australian media representations of Islam, Muslims, and terrorism. Research questions included: “Are there differences in the ways in which Australian Muslims respond to messages about ‘fear’ and ‘terror’ compared with broader community Australians’ responses to the same messages?” and “How do Australian Muslims construct the perceptions and attitudes of the broader Australian community based on the messages that circulate in the media?” Recent examples of kinds of messages investigated include media coverage of Islamic State’s (ISIS’s) activities (Karam & Salama), and the fear-provoking coverage around the possible recruitment of Australians to join the fighting in Syria and Iraq (Cox). The ten focus groups were augmented by 60 interviews, 30 with respondents who identified as Muslim (15 males, 15 female) and 30 respondents from the broader community (same gender divisions). Finally, a market research company was commissioned to conduct a ‘fear survey’, based on an established ‘fear of rape’ inventory (Aly and Balnaves), delivered by telephone to a random sample of 750 over-18 y.o. Australians in which Muslims formed a deliberative sub-group, to ensure they were over-sampled and constituted at least 150 respondents. The face-to-face surveys and focus groups were conducted by co-author, Dr Anne Aly. General FindingsMuslim respondents indicate a heightened intensity of reaction to media messages around fear and terror. In addition to a generalised fear of the potential impact of terrorism upon Australian society and culture, Muslim respondents experienced a specific fear that any terrorist-related media coverage might trigger hostility towards Muslim Australian communities and their own family members. According to the ‘fear survey’ scale, Muslim Australians at the time of the research experienced approximately twice the fear level of mainstream Australian respondents. Broader Australian community Australian Muslim communityFear of a terrorist attackFear of a terrorist attack combines with the fear of a community backlashSpecific victims: dead, injured, bereavedCommunity is full of general victims in addition to any specific victimsShort-term; intense impactsProtracted, diffuse impactsSociety-wide sympathy and support for specific victims and all those involved in dealing with the trauma and aftermathSociety-wide suspicion and a marginalisation of those affected by the backlashVictims of a terrorist attack are embraced by broader communityVictims of backlash experience hostility from the broader communityFour main fears were identified by Australian Muslims as a component of the fear of terrorism:Fear of physical harm. In addition to the fear of actual terrorist acts, Australian Muslims fear backlash reprisals such as those experienced after such events as 9/11, the Bali bombings, and attacks upon public transport passengers in Spain and the UK. These and similar events were constructed as precipitating increased aggression against identifiable Australian Muslims, along with shunning of Muslims and avoidance of their company.The construction of politically-motivated fear. Although fear is an understandable response to concerns around terrorism, many respondents perceived fears as being deliberately exacerbated for political motives. Such strategies as “Be alert, not alarmed” (Bassio), labelling asylum seekers as potential terrorists, and talk about home-grown terrorists, are among the kinds of fears which were identified as politically motivated. The political motivation behind such actions might include presenting a particular party as strong, resolute and effective. Some Muslim Australians construct such approaches as indicating that their government is more interested in political advantage than social harmony.Fear of losing civil liberties. As well as sharing the alarm of the broader Australian community at the dozens of legislative changes banning people, organisations and materials, and increasing surveillance and security checks, Muslim Australians fear for the human rights implications across their community, up to and including the lives of their young people. This fear is heightened when community members may look visibly different from the mainstream. Examples of the events fuelling such fears include the London police killing of Jean Charles de Menezes, a Brazilian Catholic working as an electrician in the UK and shot in the month following the 7/7 attacks on the London Underground system (Pugliese). In Australia, the case of Mohamed Hannef indicated that innocent people could easily be unjustly accused and wrongly targeted, and even when this was evident the political agenda made it almost impossible for authorities to admit their error (Rix).Feeling insecure. Australian Muslims argue that personal insecurity has become “the new normal” (Massumi), disproportionately affecting Muslim communities in both physical and psychological ways. Physical insecurity is triggered by the routine avoidance, shunning and animosity experienced by many community members in public places. Psychological insecurity includes fear for the safety of younger members of the community compounded by concern that young people may become ‘radicalised’ as a result of the discrimination they experience. Australian Muslims fear the backlash following any possible terrorist attack on Australian soil and describe the possible impact as ‘unimaginable’ (Aly and Green, ‘Moderate Islam’).In addition to this range of fears expressed by Australian Muslims and constructed in response to wider societal reactions to increased concerns over radical Islam and the threat of terrorist activity, an analysis of respondents’ statements indicate that Muslim Australians construct the broader community as exhibiting:Fear of religious conviction (without recognising the role of their own secular/religious convictions underpinning this fear);Fear of extremism (expressed in various extreme ways);Fear of powerlessness (responded to by disempowering others); andFear of political action overseas having political effects at home (without acknowledging that it is the broader community’s response to such overseas events, such as 9/11 [Green ‘Did the world really change?’], which has also had impacts at home).These constructions, extrapolations and understandings by Australian Muslims of the fears of the broader community underpinning the responses to the threat of terror have been addressed elsewhere (Green and Aly). Legitimate Australian MuslimsOne frustration identified by many Muslim respondents centres upon a perceived ‘acceptable’ way to be an Australian Muslim. Arguing that the broader community construct Muslims as a homogenous group defined by their religious affiliation, these interviewees felt that the many differences within and between the twenty-plus national, linguistic, ethnic, cultural and faith-based groupings that constitute WA’s Muslim population were being ignored. Being treated as a homogenised group on a basis of faith appears to have the effect of putting that religious identity under pressure, paradoxically strengthening and reinforcing it (Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). The appeal to Australian Muslims to embrace membership in a secular society and treat religion as a private matter also led some respondents to suggest they were expected to deny their own view of their faith, in which they express their religious identity across their social spheres and in public and private contexts. Such expression is common in observant Judaism, Hinduism and some forms of Christianity, as well as in some expressions of Islam (Aly and Green, ‘Less than equal’). Massumi argues that even the ways in which some Muslims dress, indicating faith-based behaviour, can lead to what he terms as ‘affective modulation’ (Massumi), repeating and amplifying the fear affect as a result of experiencing the wider community’s fear response to such triggers as water bottles (from airport travel) and backpacks, on the basis of perceived physical difference and a supposed identification with Muslim communities, regardless of the situation. Such respondents constructed this (implied) injunction to suppress their religious and cultural affiliation as akin to constructing the expression of their identity as illegitimate and somehow shameful. Parallels can be drawn with previous social responses to a person born out of wedlock, and to people in same-sex relationships: a ‘don’t ask, don’t tell’ kind of denial.Australian Muslims who see their faith as denied or marginalised may respond by identifying more strongly with other Muslims in their community, since the community-based context is one in which they feel welcomed and understood. The faith-based community also allows and encourages a wider repertoire of acceptable beliefs and actions entailed in the performance of ‘being Muslim’. Hand in hand with a perception of being required to express their religious identity in ways that were acceptable to the majority community, these respondents provided a range of examples of self-protective behaviours to defend themselves and others from the impacts of perceived marginalisation. Such behaviours included: changing their surnames to deflect discrimination based solely on a name (Aly and Green, ‘Fear, Anxiety and the State of Terror’); keeping their opinions private, even when they were in line with those being expressed by the majority community (Aly and Green, ‘Moderate Islam’); the identification of ‘less safe’ and ‘safe’ activities and areas; concerns about visibly different young men in the Muslim community and discussions with them about their public behaviour and demeanour; and women who chose not to leave their homes for fear of being targeted in public places (all discussed in Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). Many of these behaviours, including changing surnames, restricting socialisation to people who know a person well, and the identification of safe and less safe activities in relation to the risk of self-revelation, were common strategies used by people who were stigmatised in previous times as a result of their illegitimacy.ConclusionConstructions of the legitimate and illegitimate provide one means through which we can investigate complex negotiations around Australianness and citizenship, thrown into sharp relief by the Australian government’s treatment of asylum seekers, also deemed “illegals”. Because they arrive in Australia (or, as the government would prefer, on Australia’s doorstep) by illegitimate channels these would-be citizens are treated very differently from people who arrive at an airport and overstay their visa. The impetus to exclude aspects of geographical Australia from the migration zone, and to house asylum seekers offshore, reveals an anxiety about borders which physically reflects the anxiety of western nations in the post-9/11 world. Asylum seekers who arrive by boat have rarely had safe opportunity to secure passports or visas, or to purchase tickets from commercial airlines or shipping companies. They represent those ethnicities and cultures which are currently in turmoil: a turmoil frequently exacerbated by western intervention, variously constructed as an il/legitimate expression of western power and interests.What this paper has demonstrated is that the boundary between Australia and the rest, the legitimate and the illegitimate, is failing in its aim of creating a stronger Australia. The means through which this project is pursued is making visible a range of motivations and concerns which are variously interpreted depending upon the position of the interpreter. The United Nations, for example, has expressed strong concern over Australia’s reneging upon its treaty obligations to refugees (Gordon). Less vocal, and more fearful, are those communities within Australia which identify as community members with the excluded illegals. The Australian government’s treatment of detainees on Manus Island and Nauru, who generally exhibit markers of visible difference as a result of ethnicity or culture, is one aspect of a raft of government policies which serve to make some people feel that their Australianness is somehow less legitimate than that of the broader community. AcknowledgementsThis paper is based on the findings of an Australian Research Council Discovery Project (DP0559707), 2005-7, “Australian responses to the images and discourses of terrorism and the other: establishing a metric of fear”, awarded to Professors Lelia Green and Mark Balnaves. 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Ubiquitous in airports, border checkpoints, and other securitised spaces throughout the world, full-body imaging scanners claim to read bodies in order to identify if they pose security threats. Millimetre-wave body imaging machines—the most common type of body scanner—display to the operating security agent a screen with a generic body outline. If an anomaly is found or if an individual does not align with the machine’s understanding of an “average” body, a small box is highlighted and placed around the “problem” area, prompting further inspection in the form of pat-downs or questioning. In this complex security regime governed by such biometric, body-based technologies, it could be argued that nonalignment with bodily normativity as well as an attendant failure to reveal oneself—to become “transparent” (Hall 295)—marks a body as dangerous. As these algorithmic technologies become more pervasive, so too does the imperative to critically examine their purported neutrality and operative logic of revelation and readability.Biometric technologies are marketed as excavators of truth, with their optic potency claiming to demask masquerading bodies. Failure and bias are, however, an inescapable aspect of such technologies that work with narrow parameters of human morphology. Indeed, surveillance technologies have been taken to task for their inherent racial and gender biases (Browne; Pugliese). Facial recognition has, for example, been critiqued for its inability to read darker skin tones (Buolamwini and Gebru), while body scanners have been shown to target transgender bodies (Keyes; Magnet and Rodgers; Quinan). Critical security studies scholar Shoshana Magnet argues that error is endemic to the technological functioning of biometrics, particularly since they operate according to the faulty notion that bodies are “stable” and unchanging repositories of information that can be reified into code (Magnet 2).Although body scanners are presented as being able to reliably expose concealed weapons, they are riddled with incompetencies that misidentify and over-select certain demographics as suspect. Full-body scanners have, for example, caused considerable difficulties for transgender travellers, breast cancer patients, and people who use prosthetics, such as artificial limbs, colonoscopy bags, binders, or prosthetic genitalia (Clarkson; Quinan; Spalding). While it is not in the scope of this article to detail the workings of body imaging technologies and their inconsistencies, a growing body of scholarship has substantiated the claim that these machines unfairly impact those identifying as transgender and non-binary (see, e.g., Beauchamp; Currah and Mulqueen; Magnet and Rogers; Sjoberg). Moreover, they are constructed according to a logic of binary gender: before each person enters the scanner, transportation security officers must make a quick assessment of their gender/sex by pressing either a blue (corresponding to “male”) or pink (corresponding to “female”) button. In this sense, biometric, computerised security systems control and monitor the boundaries between male and female.The ability to “reveal” oneself is henceforth predicated on having a body free of “abnormalities” and fitting neatly into one of the two sex categorisations that the machine demands. Transgender and gender-nonconforming individuals, particularly those who do not have a binary gender presentation or whose presentation does not correspond to the sex marker in their documentation, also face difficulties if the machine flags anomalies (Quinan and Bresser). Drawing on a Foucauldian analysis of power as productive, Toby Beauchamp similarly illustrates how surveillance technologies not only identify but also create and reshape the figure of the dangerous subject in relation to normative configurations of gender, race, and able-bodiedness. By mobilizing narratives of concealment and disguise, heightened security measures frame gender nonconformity as dangerous (Beauchamp, Going Stealth). Although national and supranational authorities market biometric scanning technologies as scientifically neutral and exact methods of identification and verification and as an infallible solution to security risks, such tools of surveillance are clearly shaped by preconceptions and prejudgements about race, gender, and bodily normativity. Not only are they encoded with “prototypical whiteness” (Browne) but they are also built on “grossly stereotypical” configurations of gender (Clarkson).Amongst this increasingly securitised landscape, creative forms of artistic resistance can offer up a means of subverting discriminatory policing and surveillance practices by posing alternate visualisations that reveal and challenge their supposed objectivity. In his 2018 audio-video artwork installation entitled SANCTUM, UK-based American artist Zach Blas delves into how biometric technologies, like those described above, both reveal and (re)shape ontology by utilising the affectual resonance of sexual submission. Evoking the contradictory notions of oppression and pleasure, Blas describes SANCTUM as “a mystical environment that perverts sex dungeons with the apparatuses and procedures of airport body scans, biometric analysis, and predictive policing” (see full description at https://zachblas.info/works/sanctum/).Depicting generic mannequins that stand in for the digitalised rendering of the human forms that pass through body scanners, the installation transports the scanners out of the airport and into a queer environment that collapses sex, security, and weaponry; an environment that is “at once a prison-house of algorithmic capture, a sex dungeon with no genitals, a weapons factory, and a temple to security.” This artistic reframing gestures towards full-body scanning technology’s germination in the military, prisons, and other disciplinary systems, highlighting how its development and use has originated from punitive—rather than protective—contexts.In what follows, we adopt a methodological approach that applies visual analysis and close reading to scrutinise a selection of scenes from SANCTUM that underscore the sadomasochistic power inherent in surveillance technologies. Analysing visual and aural elements of the artistic intervention allows us to complicate the relationship between transparency and recognition and to problematise the dynamic of mandatory complicity and revelation that body scanners warrant. In contrast to a discourse of visibility that characterises algorithmically driven surveillance technology, Blas suggests opacity as a resistance strategy to biometrics' standardisation of identity. Taking an approach informed by critical security studies and queer theory, we also argue that SANCTUM highlights the violence inherent to the practice of reducing the body to a flat, inert surface that purports to align with some sort of “core” identity, a notion that contradicts feminist and queer approaches to identity and corporeality as fluid and changing. In close reading this artistic installation alongside emerging scholarship on the discriminatory effects of biometric technology, this article aims to highlight the potential of art to queer the supposed objectivity and neutrality of biometric surveillance and to critically challenge normative logics of revelation and readability.Corporeal Fetishism and Body HorrorThroughout both his artistic practice and scholarly work, Blas has been critical of the above narrative of biometrics as objective extractors of information. Rather than looking to dominant forms of representation as a means for recognition and social change, Blas’s work asks that we strive for creative techniques that precisely queer biometric and legal systems in order to make oneself unaccounted for. For him, “transparency, visibility, and representation to the state should be used tactically, they are never the end goal for a transformative politics but are, ultimately, a trap” (Blas and Gaboury 158). While we would simultaneously argue that invisibility is itself a privilege that is unevenly distributed, his creative work attempts to refuse a politics of visibility and to embrace an “informatic opacity” that is attuned to differences in bodies and identities (Blas).In particular, Blas’s artistic interventions titled Facial Weaponization Suite (2011-14) and Face Cages (2013-16) protest against biometric recognition and the inequalities that these technologies propagate by making masks and wearable metal objects that cannot be detected as human faces. This artistic-activist project contests biometric facial recognition and their attendant inequalities by, as detailed on the artist’s website,making ‘collective masks’ in workshops that are modelled from the aggregated facial data of participants, resulting in amorphous masks that cannot be detected as human faces by biometric facial recognition technologies. The masks are used for public interventions and performances.One mask explores blackness and the racist implications that undergird biometric technologies’ inability to detect dark skin. Meanwhile another mask, which he calls the “Fag Face Mask”, points to the heteronormative underpinnings of facial recognition. Created from the aggregated facial data of queer men, this amorphous pink mask implicitly references—and contests—scientific studies that have attempted to link the identification of sexual orientation through rapid facial recognition techniques.Building on this body of creative work that has advocated for opacity as a tool of social and political transformation, SANCTUM resists the revelatory impulses of biometric technology by turning to the use and abuse of full-body imaging. The installation opens with a shot of a large, dark industrial space. At the far end of a red, spotlighted corridor, a black mask flickers on a screen. A shimmering, oscillating sound reverberates—the opening bars of a techno track—that breaks down in rhythm while the mask evaporates into a cloud of smoke. The camera swivels, and a white figure—the generic mannequin of the body scanner screen—is pummelled by invisible forces as if in a wind tunnel. These ghostly silhouettes appear and reappear in different positions, with some being whipped and others stretched and penetrated by a steel anal hook. Rather than conjuring a traditional horror trope of the body’s terrifying, bloody interior, SANCTUM evokes a new kind of feared and fetishized trope that is endemic to the current era of surveillance capitalism: the abstracted body, standardised and datafied, created through the supposedly objective and efficient gaze of AI-driven machinery.Resting on the floor in front of the ominous animated mask are neon fragments arranged in an occultist formation—hands or half a face. By breaking the body down into component parts— “from retina to fingerprints”—biometric technologies “purport to make individual bodies endlessly replicable, segmentable and transmissible in the transnational spaces of global capital” (Magnet 8). The notion that bodies can be seamlessly turned into blueprints extracted from biological and cultural contexts has been described by Donna Haraway as “corporeal fetishism” (Haraway, Modest). In the context of SANCTUM, Blas illustrates the dangers of mistaking a model for a “concrete entity” (Haraway, “Situated” 147). Indeed, the digital cartography of the generic mannequin becomes no longer a mode of representation but instead a technoscientific truth.Several scenes in SANCTUM also illustrate a process whereby substances are extracted from the mannequins and used as tools to enact violence. In one such instance, a silver webbing is generated over a kneeling figure. Upon closer inspection, this geometric structure, which is reminiscent of Blas’s earlier Face Cages project, is a replication of the triangulated patterns produced by facial recognition software in its mapping of distance between eyes, nose, and mouth. In the next scene, this “map” breaks apart into singular shapes that float and transform into a metallic whip, before eventually reconstituting themselves as a penetrative douche hose that causes the mannequin to spasm and vomit a pixelated liquid. Its secretions levitate and become the webbing, and then the sequence begins anew.In another scene, a mannequin is held upside-down and force-fed a bubbling liquid that is being pumped through tubes from its arms, legs, and stomach. These depictions visualise Magnet’s argument that biometric renderings of bodies are understood not to be “tropic” or “historically specific” but are instead presented as “plumbing individual depths in order to extract core identity” (5). In this sense, this visual representation calls to mind biometrics’ reification of body and identity, obfuscating what Haraway would describe as the “situatedness of knowledge”. Blas’s work, however, forces a critique of these very systems, as the materials extracted from the bodies of the mannequins in SANCTUM allude to how biometric cartographies drawn from travellers are utilised to justify detainment. These security technologies employ what Magnet has referred to as “surveillant scopophilia,” that is, new ways and forms of looking at the human body “disassembled into component parts while simultaneously working to assuage individual anxieties about safety and security through the promise of surveillance” (17). The transparent body—the body that can submit and reveal itself—is ironically represented by the distinctly genderless translucent mannequins. Although the generic mannequins are seemingly blank slates, the installation simultaneously forces a conversation about the ways in which biometrics draw upon and perpetuate assumptions about gender, race, and sexuality.Biometric SubjugationOn her 2016 critically acclaimed album HOPELESSNESS, openly transgender singer, composer, and visual artist Anohni performs a deviant subjectivity that highlights the above dynamics that mark the contemporary surveillance discourse. To an imagined “daddy” technocrat, she sings:Watch me… I know you love me'Cause you're always watching me'Case I'm involved in evil'Case I'm involved in terrorism'Case I'm involved in child molestersEvoking a queer sexual frisson, Anohni describes how, as a trans woman, she is hyper-visible to state institutions. She narrates a voyeuristic relation where trans bodies are policed as threats to public safety rather than protected from systemic discrimination. Through the seemingly benevolent “daddy” character and the play on ‘cause (i.e., because) and ‘case (i.e., in case), she highlights how gender-nonconforming individuals are predictively surveilled and assumed to already be guilty. Reflecting on daddy-boy sexual paradigms, Jack Halberstam reads the “sideways” relations of queer practices as an enactment of “rupture as substitution” to create a new project that “holds on to vestiges of the old but distorts” (226). Upending power and control, queer art has the capacity to both reveal and undermine hegemonic structures while simultaneously allowing for the distortion of the old to create something new.Employing the sublimatory relations of bondage, discipline, sadism, and masochism (BDSM), Blas’s queer installation similarly creates a sideways representation that re-orientates the logic of the biometric scanners, thereby unveiling the always already sexualised relations of scrutiny and interrogation as well as the submissive complicity they demand. Replacing the airport environment with a dark and foreboding mise-en-scène allows Blas to focus on capture rather than mobility, highlighting the ways in which border checkpoints (including those instantiated by the airport) encourage free travel for some while foreclosing movement for others. Building on Sara Ahmed’s “phenomenology of being stopped”, Magnet considers what happens when we turn our gaze to those “who fail to pass the checkpoint” (107). In SANCTUM, the same actions are played out again and again on spectral beings who are trapped in various states: they shudder in cages, are chained to the floor, or are projected against the parameters of mounted screens. One ghostly figure, for instance, lies pinned down by metallic grappling hooks, arms raised above the head in a recognisable stance of surrender, conjuring up the now-familiar image of a traveller standing in the cylindrical scanner machine, waiting to be screened. In portraying this extended moment of immobility, Blas lays bare the deep contradictions in the rhetoric of “freedom of movement” that underlies such spaces.On a global level, media reporting, scientific studies, and policy documents proclaim that biometrics are essential to ensuring personal safety and national security. Within the public imagination, these technologies become seductive because of their marked ability to identify terrorist attackers—to reveal threatening bodies—thereby appealing to the anxious citizen’s fear of the disguised suicide bomber. Yet for marginalised identities prefigured as criminal or deceptive—including transgender and black and brown bodies—the inability to perform such acts of revelation via submission to screening can result in humiliation and further discrimination, public shaming, and even tortuous inquiry – acts that are played out in SANCTUM.Masked GenitalsFeminist surveillance studies scholar Rachel Hall has referred to the impetus for revelation in the post-9/11 era as a desire for a universal “aesthetics of transparency” in which the world and the body is turned inside-out so that there are no longer “secrets or interiors … in which terrorists or terrorist threats might find refuge” (127). Hall takes up the case study of Umar Farouk Abdulmutallab (infamously known as “the Underwear Bomber”) who attempted to detonate plastic explosives hidden in his underwear while onboard a flight from Amsterdam to Detroit on 25 December 2009. Hall argues that this event signified a coalescence of fears surrounding bodies of colour, genitalia, and terrorism. News reports following the incident stated that Abdulmutallab tucked his penis to make room for the explosive, thereby “queer[ing] the aspiring terrorist by indirectly referencing his willingness … to make room for a substitute phallus” (Hall 289). Overtly manifested in the Underwear Bomber incident is also a desire to voyeuristically expose a hidden, threatening interiority, which is inherently implicated with anxieties surrounding gender deviance. Beauchamp elaborates on how gender deviance and transgression have coalesced with terrorism, which was exemplified in the wake of the 9/11 attacks when the United States Department of Homeland Security issued a memo that male terrorists “may dress as females in order to discourage scrutiny” (“Artful” 359). Although this advisory did not explicitly reference transgender populations, it linked “deviant” gender presentation—to which we could also add Abdulmutallab’s tucking of his penis—with threats to national security (Beauchamp, Going Stealth). This also calls to mind a broader discussion of the ways in which genitalia feature in the screening process. Prior to the introduction of millimetre-wave body scanning technology, the most common form of scanner used was the backscatter imaging machine, which displayed “naked” body images of each passenger to the security agent. Due to privacy concerns, these machines were replaced by the scanners currently in place which use a generic outline of a passenger (exemplified in SANCTUM) to detect possible threats.It is here worth returning to Blas’s installation, as it also implicitly critiques the security protocols that attempt to reveal genitalia as both threatening and as evidence of an inner truth about a body. At one moment in the installation a bayonet-like object pierces the blank crotch of the mannequin, shattering it into holographic fragments. The apparent genderlessness of the mannequins is contrasted with these graphic sexual acts. The penetrating metallic instrument that breaks into the loin of the mannequin, combined with the camera shot that slowly zooms in on this action, draws attention to a surveillant fascination with genitalia and revelation. As Nicholas L. Clarkson documents in his analysis of airport security protocols governing prostheses, including limbs and packies (silicone penis prostheses), genitals are a central component of the screening process. While it is stipulated that physical searches should not require travellers to remove items of clothing, such as underwear, or to expose their genitals to staff for inspection, prosthetics are routinely screened and examined. This practice can create tensions for trans or disabled passengers with prosthetics in so-called “sensitive” areas, particularly as guidelines for security measures are often implemented by airport staff who are not properly trained in transgender-sensitive protocols.ConclusionAccording to media technologies scholar Jeremy Packer, “rather than being treated as one to be protected from an exterior force and one’s self, the citizen is now treated as an always potential threat, a becoming bomb” (382). Although this technological policing impacts all who are subjected to security regimes (which is to say, everyone), this amalgamation of body and bomb has exacerbated the ways in which bodies socially coded as threatening or deceptive are targeted by security and surveillance regimes. Nonetheless, others have argued that the use of invasive forms of surveillance can be justified by the state as an exchange: that citizens should willingly give up their right to privacy in exchange for safety (Monahan 1). Rather than subscribing to this paradigm, Blas’ SANCTUM critiques the violence of mandatory complicity in this “trade-off” narrative. Because their operationalisation rests on normative notions of embodiment that are governed by preconceptions around gender, race, sexuality and ability, surveillance systems demand that bodies become transparent. This disproportionally affects those whose bodies do not match norms, with trans and queer bodies often becoming unreadable (Kafer and Grinberg). The shadowy realm of SANCTUM illustrates this tension between biometric revelation and resistance, but also suggests that opacity may be a tool of transformation in the face of such discriminatory violations that are built into surveillance.ReferencesAhmed, Sara. “A Phenomenology of Whiteness.” Feminist Theory 8.2 (2007): 149–68.Beauchamp, Toby. “Artful Concealment and Strategic Visibility: Transgender Bodies and U.S. State Surveillance after 9/11.” Surveillance & Society 6.4 (2009): 356–66.———. Going Stealth: Transgender Politics and U.S. Surveillance Practices. 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