Stat tracking and Brad leaving

[matgb]

Livejournal usage continues to slowly decline. insomnia's post here from last december continues to attract new comments and the statistics continue to be updated. In addition, pyrop has posted a graphical representation of these stats on their own journal. Here's a key graphic:

Comments

[insomnia]

"Excellent post..."

Except, of course, for the glaring inaccuracies about what the laws regarding pornographic illustrations actually are.

His analysis of the legality of such materials is highly flawed. While pornographic photographic images of any minor are illegal in the United States, there are no laws in the U.S. against pornographic illustrations of minors... only laws against pornographic illustrations of those who are pre-pubescent.

There has been talk, mind you, and attempts were made by Congress to make laws tougher during the Bush administration by going against virtual child pornography -- video/ photographic images which appear to depict sex with a minor, which is why Jeremy Irons' "Lolita" is being seen as a litmus test as to the constitutionality of such laws, but the standards for illustrations remain the same.

Truth is, there are more grounds to oppose the vast majority of fandom material based on potential copyright issues than there are based on whether they are pornographic or not.

Of course, there is an easy remedy for such situations. It's called the DMCA "takedown" requirement, which give copyright holders the right to complain about potential violations of their rights, which, in turn, should ideally result in a fast removal of said content, or at least a statement by the person responsible for posting such materials that they believe it to not be in violation of the claimant's copyrights.

And as bad and hamfisted as 6A/LJ currently handles such DMCA issues -- there are, under the DMCA, supposed to give the defendant an opportunity and a mechanism to contest the takedown -- the DMCA is designed to absolve the service provider of *ALL* legal liability for such content, so long as they comply with the terms of the DMCA.

[av8rmike]

I'm not sure why you wrote that whole thing to me and to mskala, but anyway... It seems to me that all the talk about legality from 6A is just a red herring and clouding the issue. They should have claimed the first round of Strikethrough was from copyright violations, but even then it was too heavy-handed, and word had gotten out about the pressure from the WfI people. No one would have believed them, just as no one does now.

[insomnia]

*nods*

Given the type of business they are in and their own close ties with groups such as the EFF, 6A have a very high obligation to their users -- and expectation by their users -- to protect free speech and freedom of expression up to the limit of applicable laws. When they make decisions not to do this, they make themselves look like patsys, amateurs, or traitors.

[matgb]

Given ... their own close ties with groups such as the EFF, 6A have a very high obligation to their users - and expectation by their users - to protect free speech ... When they make decisions not to do this, they make themselves look like patsys, amateurs, or traitors.

That is I think the crux of the matter; in this matter, the law isn't clear, and the lawyers are being cautious. 6A has taken the decision to not risk legal entanglement.

A test case would be needed, and they've decided they don't want to be the firm that fights it. That's not a business decision I'd have wanted to take, but I do think it's a bad one in many respects.

OTOH, your point below about SF courts I'm not sure I agree on; it'd get appealed, and it might go very high, then the 'standards' of wherever the appeal is held might begin to kick in.

(also? Added an edit to the post with a few links on my and other people' thoughts on the issues we're now discussing rather than those raised initially, seeing as it does seem to be the topic anyway)

[insomnia]

You're overreaching here. There is no legal case, no test case, and no case at all really. There certainly isn't a theoretical case which would be appealed outside of the SF courts, especially since community standards are such that any such case would most likely never make it to court.

(And no, when you appeal a case upwards, the prevailing community standards *NEVER* change, period, and aren't called into question. What is called into question is whether the law, such as it is, was applies and interpreted correctly, not whether the community standards were "right" or not.

Really, if the *potential* for such a case ever came about, 6A could easily make an individual judgement on a specific offending work and say "please, we don't want that here". They could even act upon a complaint and do a takedown of a specific reported offending item, thereby protecting themselves from liability, but that's not what they did. Instead, they made a sweeping decision to reinterpret their existing policies, without communicating with or attempting to work with the LJ community.

So, yeah... of course that decision was a bad one.

Frankly, I don't give much creedence to what people's opinions and theoreticals of what they think could happen. What matters is the law, and when it comes to that, the law gives all sorts of legal protection to ISPs, so long as they take down content when asked / ordered to do so. They, in turn, have the right to be given a very specific list of any content that must be removed.

As it says in the TOS, "the user is solely responsible for his or her actions when using the Service" -- there's not much of a question as to who is liable for the content posted. If someone wants to send along a DMCA to get content removed, or if the police want it removed, it gets removed, period.