You're one of the people I trust most to maintain a cool head and not be impetuous about this.
1. How do you see people being able to access this community? How much does it have to be walled off to protect people in fandom? What about people who don't produce fannish works, but are there mostly to read fic, watch vids, use icons?
2. How do you see the Miller standard being applied in said community? Who determines what's appropriate and permissible? Do we say, "Okay, this crosses a line, you can't post it or host it directly on your fandom journal, but you can link to it offsite somewhere?" or "This is controversial enough that you have to lock it against underage peeps"? Is there enough wiggle room in US law to permit a fandom user being informed, "Hey, we can't let you post that here, you have 24 hours to take it down?" Or would it be safer hosted in a different country?
2a. Who, indeed, determines the community standards? Make it a true democracy and put every single borderline case up for judgment and *require* voting like Australia? Make it like jury duty? Or like Slashdot "mod points" and say, "Okay, you get X votes for Y period of time?" Have a three-month period at the beginning where everyone puts up their most questionable stuff and the community votes?
Or is "majority rules" even the right way to go about this? I've seen what to me is a surprisingly large number of people in fandom saying that the pic that got Pond banned was over the line, and a surprisingly small number of people saying, "I may not like it, but I think her right to free speech/expression is more important than my personal distate for it."
3. What about people who aren't necessarily "of age"? How do we include them safely? Should posting full birthdates be a requirement? How do we handle/determine what content is appropriate for "of age" vs. "not of age?" (Yes, I know, ten years ago, the internet was Wild Westy enough that as long as you *acted* mature, no one questioned your right to access certain information. With the internet much more mainstream now, how do you mark out such an area?)
For various reasons, I think everything that currently exists enough for fandom to know about it isn't going to fly - it wasn't designed *specifically for* fandom; its interests and fandom's interests may come into conflict one day. Even the IJ dude, apparently being all "post whatever you want, it's not coming off my servers without you deleting it or a court order" ... I don't think he really, really knows what he's getting into. Either that or he's got titanium nuts. Or a trust fund.
(And while a trust fund could come in handy for the legal battles any fandom stronghold is likely to run into, it also makes me nervous to centralize all the power and money like that, too.)
Honestly, I don't know. That's part of why I'm so upset. I see people fleeing right and left, and while I know fandom can survive that kind of fracturing, I'm not sure if the warm homes I've found for myself within the larger fanecology will remain the same, nevermind the integration with the nonfannish parts of LJ.
I just don't see the bulk of fandom being willing to stay, after this. Not because there's anything better out there than LJ, but because people aren't willing to invest anything more in something they don't feel they can trust, when we've already been burned once. So no matter how much it may not yet be the best solution, folks will leave, which sucks. I'd really rather people stayed until we had this figured out, and a new home built.
Anyway, I don't have any easy answers to your questions. I think a lot of it may require a complete rethinking of how fandom has used LJ in creating a new service. We may need to separate discussion and archiving, for one thing, even if they are both run by fanarchive. Which would change the way we've grown used to posting fic, and reading, etc., but might also offer benefits too. If our blogging service were functionally separate from our archiving service, it might be able to support fans better by allowing any legally necessary censorship to focus on specific archived files, rather than entire comprehensive accounts.
One of my big issues is that I would have thought that given Strikethroughgate, LJ would not suspend an entire account for one clearly unintentional issue. Delete the posting without warning, fine, if the law demands it. But delete the account? And then also all other accounts owned by that user? And then forbid them from ever creating another account with you? That's essentially saying that one offense, made public in at least some part due to ignorance of the insane strictness of US law, is equivalent to being a sex offender and a dangerous personage who cannot be trusted to use the service responsibly ever again. Does the law really require that level of draconian response? And if it doesn't, how can I trust LJ again when they've so recently already had one chance to learn from similar mistakes? And even if LJ and its lawyers believe the law does require that level of response, does it also require that, for the second time, there be no immediate public explanation?
I'm not sure how the fan community should draw its own lines of public decency. For age, I'm inclined to suggest some kind of system where users have the option of declaring as much or as little of their age as they want, and people posting content have the option of allowing people of as wide or as narrow a self-declared age range as they choose to access any individual posting. Again though, I'd do this separating the fic and art and vids from the discussion if I have my druthers, which I may not since users will use a service the way they want to, and we're used to using LJ as all-in-one.
In general though, I take a pretty strong civil libertarian view. I believe that there needs to be room at the margins of our social systems for people to break the law, and for law enforcement to take place after the fact, rather than pre-emptively. Obviously there are some exceptions to that principle, because of course it conflicts with another basic right, which is the right to safety, but in general I believe that the "laws" of privately owned communities should reflect the principle that a user can be trusted, and that enforcement should arise only upon complaint.
For a fan-owned archive, that would mean that it's up to the content-creating user what they post, how they flag it, and who they might allow to access it or filter it away from. If the service provider receives a legally binding request to remove the material, they should take it down. I don't have an easy answer for the most important cases though, the ones in the blurry middle where another user reports a piece of content as potentially illegal and asks for it to be removed. I do have a few general thoughts though: - that community guidelines should be determined by the community, through discussion and maybe also voting, but that voting shouldn't be applied to specific cases. - that if a posting violates community guidelines but not the law, the content creating user should have an option of making the offending item more restricted-access, rather than a black and white of either public or deleted. - that unless it specifically violates a law that is being enforced against it, a piece of content that is filtered to a restricted audience should never be removed, even if the majority of the community would consider it to be offensive, so long as nobody is forced to view it without first being truthfully informed about what the content is. - that if a piece of content is determined to violate a law, the punishment should not automatically and at the first offense stretch to the user's entire account and potential future accounts. Repeat offenders posting actually illegal content that the service provider is obliged to censor should certainly bear a consequence, but unless it's legally mandated I see no reason to permanently suspend an entire account or prohibit future accounts.
*nodnod* I put down some of my thoughts here. (note the new fannish-related public journal, as i was able to get a desired-by-me username :)
And I definitely like the more libertarian approach; I just am not sure how we can make it work in the current political climate without external unwanted interference.
1. How do you see people being able to access this community? How much does it have to be walled off to protect people in fandom? What about people who don't produce fannish works, but are there mostly to read fic, watch vids, use icons?
2. How do you see the Miller standard being applied in said community? Who determines what's appropriate and permissible? Do we say, "Okay, this crosses a line, you can't post it or host it directly on your fandom journal, but you can link to it offsite somewhere?" or "This is controversial enough that you have to lock it against underage peeps"? Is there enough wiggle room in US law to permit a fandom user being informed, "Hey, we can't let you post that here, you have 24 hours to take it down?" Or would it be safer hosted in a different country?
2a. Who, indeed, determines the community standards? Make it a true democracy and put every single borderline case up for judgment and *require* voting like Australia? Make it like jury duty? Or like Slashdot "mod points" and say, "Okay, you get X votes for Y period of time?" Have a three-month period at the beginning where everyone puts up their most questionable stuff and the community votes?
Or is "majority rules" even the right way to go about this? I've seen what to me is a surprisingly large number of people in fandom saying that the pic that got Pond banned was over the line, and a surprisingly small number of people saying, "I may not like it, but I think her right to free speech/expression is more important than my personal distate for it."
3. What about people who aren't necessarily "of age"? How do we include them safely? Should posting full birthdates be a requirement? How do we handle/determine what content is appropriate for "of age" vs. "not of age?" (Yes, I know, ten years ago, the internet was Wild Westy enough that as long as you *acted* mature, no one questioned your right to access certain information. With the internet much more mainstream now, how do you mark out such an area?)
For various reasons, I think everything that currently exists enough for fandom to know about it isn't going to fly - it wasn't designed *specifically for* fandom; its interests and fandom's interests may come into conflict one day. Even the IJ dude, apparently being all "post whatever you want, it's not coming off my servers without you deleting it or a court order" ... I don't think he really, really knows what he's getting into. Either that or he's got titanium nuts. Or a trust fund.
(And while a trust fund could come in handy for the legal battles any fandom stronghold is likely to run into, it also makes me nervous to centralize all the power and money like that, too.)
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I just don't see the bulk of fandom being willing to stay, after this. Not because there's anything better out there than LJ, but because people aren't willing to invest anything more in something they don't feel they can trust, when we've already been burned once. So no matter how much it may not yet be the best solution, folks will leave, which sucks. I'd really rather people stayed until we had this figured out, and a new home built.
Anyway, I don't have any easy answers to your questions. I think a lot of it may require a complete rethinking of how fandom has used LJ in creating a new service. We may need to separate discussion and archiving, for one thing, even if they are both run by fanarchive. Which would change the way we've grown used to posting fic, and reading, etc., but might also offer benefits too. If our blogging service were functionally separate from our archiving service, it might be able to support fans better by allowing any legally necessary censorship to focus on specific archived files, rather than entire comprehensive accounts.
One of my big issues is that I would have thought that given Strikethroughgate, LJ would not suspend an entire account for one clearly unintentional issue. Delete the posting without warning, fine, if the law demands it. But delete the account? And then also all other accounts owned by that user? And then forbid them from ever creating another account with you? That's essentially saying that one offense, made public in at least some part due to ignorance of the insane strictness of US law, is equivalent to being a sex offender and a dangerous personage who cannot be trusted to use the service responsibly ever again. Does the law really require that level of draconian response? And if it doesn't, how can I trust LJ again when they've so recently already had one chance to learn from similar mistakes? And even if LJ and its lawyers believe the law does require that level of response, does it also require that, for the second time, there be no immediate public explanation?
I'm not sure how the fan community should draw its own lines of public decency. For age, I'm inclined to suggest some kind of system where users have the option of declaring as much or as little of their age as they want, and people posting content have the option of allowing people of as wide or as narrow a self-declared age range as they choose to access any individual posting. Again though, I'd do this separating the fic and art and vids from the discussion if I have my druthers, which I may not since users will use a service the way they want to, and we're used to using LJ as all-in-one.
(continued)
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For a fan-owned archive, that would mean that it's up to the content-creating user what they post, how they flag it, and who they might allow to access it or filter it away from. If the service provider receives a legally binding request to remove the material, they should take it down. I don't have an easy answer for the most important cases though, the ones in the blurry middle where another user reports a piece of content as potentially illegal and asks for it to be removed. I do have a few general thoughts though:
- that community guidelines should be determined by the community, through discussion and maybe also voting, but that voting shouldn't be applied to specific cases.
- that if a posting violates community guidelines but not the law, the content creating user should have an option of making the offending item more restricted-access, rather than a black and white of either public or deleted.
- that unless it specifically violates a law that is being enforced against it, a piece of content that is filtered to a restricted audience should never be removed, even if the majority of the community would consider it to be offensive, so long as nobody is forced to view it without first being truthfully informed about what the content is.
- that if a piece of content is determined to violate a law, the punishment should not automatically and at the first offense stretch to the user's entire account and potential future accounts. Repeat offenders posting actually illegal content that the service provider is obliged to censor should certainly bear a consequence, but unless it's legally mandated I see no reason to permanently suspend an entire account or prohibit future accounts.
umm, more later?
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And I definitely like the more libertarian approach; I just am not sure how we can make it work in the current political climate without external unwanted interference.
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