Boldthrough '07: Uh, we're child molesters? Again?

[kalpurna]

Given Boldthrough '07, I think we should talk about legal issues regarding underage characters. NOTE THAT I AM NOT A LAWYER. Also note that I understand that LJ and SA are private organizations [ETA: and therefore can delete whatever the hell they want, legally], that they are under tremendous pressure, and that the law is kind of confusing

Comments

[somewhatdeluded]

I actually think even the obscenity issue is kind of...orthogonal to what's really going on. It is an important discussion to have, because a lot of people are really unclear on what it means, but the legal status of the artwork or fanfic in question isn't really the problem for that art/fic's life on LJ. The problem, such as it is, is that LJ reserves the right to TOS any content they find "objectionable", and they're now exercising that right on us. Whether or not the art is actually, legally obscene doesn't really change the fact that LJ can and did delete her account for it, and that they're welcome to do that to any of us at any time over our 100% non-obscene Ginny genfic if they decide that our 100% non-obscene Ginny genfic is "objectionable".

Basically, corporate dictatorship FTW. /o\

[kalpurna]

Oh, no, I completely agree, and I hope I was clear enough that this is not a reason why LJ is breaking the law, or something. I really just wanted to point out that if they're saying it's because we're posting child pornography, they're wrong, and if they say it's because we're posting obscene material, they're on genuinely shaky ground. (No one's been successfully prosecuted for obscene text in the past 40 effing years, since the Miller Test went into action.) I've seen too many people saying things like, "Well, to be fair, those artists WERE doing something illegal," or "If we start a new site of our own, it shouldn't contain [RPS/underage RPS/underage art/underage slash], because that's illegal." And I just. No. No

[silverakira]

Sorry, it is late, and I have absolutely nothing intelligent to say except for how I love your brain, as always, but:

On the one hand, I am pissed at LJ because I think, again, like you said, despite the stressful atmosphere that exists right now, how they treated their users, one who had a permanent account, no less, was appalling. I understand that they have the right to terminate anyone's journal without notice, but WHY in the world would they do this, at least without asking them to take down the artwork in the first place? I understood that they did that in the May Strikethrough, but it wasn't permanent then, or without the possibility of being appealed, especially for fandom journals.

On the other hand, I am like, guys, seriously, lock that shit down. I'm just saying, haven't we learned anything from the May Strikethrough? This isn't anything to do with breaking laws, at least on our part; I think synecdochic makes a really good point at how they're trying to preempt all possible legality issues in the future

[kalpurna]

Heee, I always make the terrible mistake of posting late at night, and then I end up replying to comments like I'm drunk/dyslexic. I FEEL YOU, BB. ♥

Yes. Yes! WHY THE DOUCHERY? I just, come ON, stop pussyfooting around this shit. Tell us what you are going to do, in general, before you do it. Tell us what you are going to do, specifically, before you do it. Tell us WHEN you do it, instead of hoping we don't find out. AND DON'T DO IT DURING A CON WEEKEND. AAARGH. It's not that they aren't justified (although by the reasoning they announced, they AREN'T), it's that they're being dishonest, and cowardly, and basically just dicking around a lot and pissing people off. Way to go, LJ!! LJ FTW!

*breathes heavily*

Oh my God, I hate locking fic so much, though! I'm sorry, I just. I was a lurker for SO LONG, and I keep my flist STRICTLY defined by "people whose journals I want to read" rather than "people I trust with pornfiction," and I don't know, maybe flock works for some people, but I hate it as a general fandom rule. I

[silverakira]

Oh, in regards to my second point, I was totally talking about the artwork, not the fic -- we're not getting booted off for the fic (yet), but, especially right now, the atmosphere is not really friendly towards fanartists, which, yes, it totally sucks, but it's probably smart to keep your head down until this all blows over. (If it all blows over. Sigh.)

I totally agree with you, I keep my f-list the same way and I HATE f-locking things, which is why I only do it if they're personal posts, and not even then, sometimes. It irritates me whenever I come across an f-locked entry, so.

And, yeah, I was totally not convinced to leave LJ the last time this happened, but this time around -- I'm inclined to agree with you. But it's just, god, it's so fucking hard to set up a place for our own, and I know people are trying with fanarchive, but I'm so skeptical that an actual forum similar to LJ is going to happen, and to have it work, to say the least. Not saying that we shouldn't try, but. It'll be an uphill battle, at best.

[kalpurna]

Oh yeah, I completely agree. Frankly, visual things are always, ALWAYS going to be riskier than text, and I totally concur about covering your ass being a good plan in this situation, regardless of legal fact. (Sigh sigh sigh.)

Exactly, dude. I actually try and remember to click *do not share* on del.icio.us for locked posts, just because I find it so profoundly irritating to click on a link to a story that sounds good and get denied access.

fandom_flies is looking active, too. I guess I'm more inclined to believe someone will successfully set up a place of our own, now that so many people will actually GO there, you know? I mean, the atmosphere is substantially different now than it was in May, as far as I can tell.

[ifreet]

Unfortunately, in 1995 the US Congress passed the Child Pornography Prevention Act which moved the question of child porn away from physically protecting actual children to the protection of the idea of children... regardless of whether or not actual children were exploited in the production of the image. For example, under this law a man was taken to court for pasting a photo of a child's face on a photo of a naked adult woman (I can't imagine that it looked particularly realistic). The stated reason he was acquitted was that the judge 'could not determine beyond a reasonable doubt that the face in the picture was of a child under 18' - not that the image as a whole was an obvious and not-directly-child-endangering fake. (From here.)

The exact wording of the act unfortunately does not help (emphasis mine):
Under this bill, any visual depiction, such as a photograph, film, videotape or computer image, which is produced by any means, including electronically by computer, of sexually explicit conduct will be classified as child

[kalpurna]

Well, CPPA was struck down in 2002, in Ashcroft v. Free Speech Coalition, for being unconstitutionally broad. The judges observed that there was a ton of legitimate art that would be not okay by those standards. (COPA, which was similarly over-reaching and free-speech-impinging, was also struck down, more recently.) I'm not absolutely, 100% positive, but I'm fairly sure that the PROTECT Act of 2003 and this code represent the latest word on the subject, and those only prohibit images that are either real abuse, or indistinguishable from real abuse.

the term "indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.So while there are certainly a lot of people trying to move us toward thoughtcrimes, we're not

[ifreet]

Your Google-Fu is the greatest! *bows*

... so that brings us back to the Miller Test. Which is kind of subjective - prurient interest? Um, yeah, that's why I READ erotica as well as the occasional romance novel! - but 6A/LJ could be upfront about what their community standards are going to be.

I think the test case for fanworks is likely to be something that leaves a good number of fans themselves uncomfortable. Because that's what a copyright holder is more likely to win on. But I don't think a small claims case is likely to attract the attention of the pertinent copyright holder (or for that matter the local prosecutor), so the odds of becoming that test case don't seem significantly higher than posting openly on the internet. I suppose 6A/LJ might intentionally try to get their attention, though.

I hate the leaving option. But at least now I'm set up for it.

[kalpurna]

Ahaha, thank you! *g*

Yeah, you know, it IS pretty subjective - but the way the courts have applied it, which matters at least as much as the actual law, is incredibly liberal. No text, under Miller, has EVER been declared obscene, and while I'm not sure of the status of art, I'd guess that it would be extraordinarily difficult, if not impossible, to declare any even remotely creative work to be obscene under US laws. [One of] the [many] thing[s] that so deeply frustrates me about LJ is that they're acting as if that rule exists to be applied based on personal, subjective judgement, and it just doesn't. That's not how the law WORKS. If they're banning things based on tastelessness, okay, fine - that's their right. But don't pretend it's a legal decision, because it isn't, and that's dishonest

[j_s_cavalcante]

Interesting discussion, and very well-taken ideas. I have only one thing to add. I've never understood why the online fan community began calling our NC-17 rated fiction "porn." It isn't, and people in the mainstream would misunderstand. They're thinking of mainstream commercial pornography (in other words, that gross stuff that is largely by and for men *g*), and people will mistakenly think that's what we produce. When we don't, not at all. There are very few fan works, even very explicit ones, in the communities we frequent, that are in the category of "Horny Cumsluts No. 8" (hee--clever fake title. Um, it is a fake title, isn't it? *boggles*). What we produce is erotica, and it does patently and obviously and clearly have serious artistic and/or literary (which is also artistic) merit, therefore it passes the Miller Test with flying colors

[kalpurna]

Thanks! :D

[joandarck]

Boldthrough '07? Hee! Whoever thought of that term, good work!

I am pretty sure, and PLEASE, PLEASE correct me if I'm wrong, that any fiction, and any art that is not photographic or photo-realistic, depicting minors either fictional or real, is not considered child pornography. I've been madly Googling for hours, and I'm fairly sure this is true.

You've been Googling search strings involving child pornography for hours? You are far braver than I am. *admires*

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest

...The part where that's a bad thing is still confusing me. I mean, if only my fic appealed to the prurient interest. I'd be proud. Weird law. What if something failed 2 and 3 but not 1? Say it showed excretory functions and had no redeeming merit, but wasn't prurient? That wouldn't be obscene, it would just be... what? Gross and stupid, but okay? Laws. Weird

[kalpurna]

Hahaha, I know, right? Wasn't me, but I do like it. :D