Why I Am Disapointed in LiveJournal/An Open Letter to LJ/6Apart
I'm disapointed in LiveJournal. No, not LJAbuse or the staffers there - I'm sure they did what they were told - but in LiveJournal itself, and in SixApart.
Why?
Because they're not as gutsy as DIGG.
Earlier this month, I posted about DIGG's decision to allow posts containing a key code used to crack DVD encryption, and I'm going to repost the whole of what I wrote then:
Some of you may've heard what Digg and a few other news aggregation-cum-social networking sites did this past week. They decided to allow postings of the code that can be used to crack the encryption on HD DVDs (and I think Blu-Ray too, but I'm not sure). You can read the BBC's article sumamrizing the situation here, or read it on ZDNet or see the Digg link-posting that has pushing 6000 "diggs" at this point on this page - it links to a youtube posting that has the key in video and text form.
I'm not gutsy enough to risk my LJ account by reposing the code - I'm still a little paranoid. But I really admire what Digg and other sites have done, and I find some parallels - and also some nonparallels - between the situation at Digg and the way a lot of fandomers look to The Powers That Be, which are some of the same people/entities - the major media producers and distributors.
Over the last 20, 30 or more years, a majority of fandomers have chosen to defer to The Powers That Be - if a cease & desist letter comes in regarding fanfic, fanart, or even fanvids, from what I've seen in the last ten years at least, a fandomer is more likely to take his or her content down than fight back and say that the fan-created content falls under fair use, or another exception to copyright or trademark law.
And the first reaction from Digg's lawyers this week (which is the same first reaction I would have had) was to take down the DRM key code. But as Alex Wexelblat wrote on Copyfight, "Digg isn't a sole-author site. Its content, like that of many Web 2.0 sites, comes from its users. Those users were inspired by this act of censorship and simply bombarded Digg with submissions containing the key sequence."
He also wrote something that made me think of the ways that fandomers frequently find to deal with attacks on their creativity from TPTB:
In the past it was fashionable to assert that the Internet treats censorship as damage and routes around it. In the current era we might say that "Web 2.0 treats censorship as inspiration and creates performance around it."
There have, of course, been occasions where people have created performances around censorship, both on the web and off. Even JK Rowling goaded Anne Rice a bit a few years ago by naming a vampire Lestoast on her website (at least, iirc it was a vampire....) and there's the whole Wizard People Dear Reader thing from two years ago.
People cope with copyright and trademark law differently than they did three or five or seven years ago. We lawyers are still as paranoid and make recommendations that the safest course, the one that will cost the least in court costs and time, is to take things down - and yes, that is still the case.
And there will always be people who choose to defer to The Powers That Be and are only playing in the sandbox as long as it's allowed by said Powers, and that's a perfectly understandable take for people to have.
I've been castigated occasionally over the years for positing that at this point in time, no major media company could win in court against fanfic writers, fanartists, or fan-content-hosting sites under a copyright infringement claim, even if the site sold ads, t-shirts or other items to cover hosting and domain fees and other expenses that are reasonably in line with the site's purpose, because all the major media companies have allowed such content for so many years that (at least in the US) statutes of limitations and laches can be used to argue that such works are noninfringing. No, there's no caselaw saying that they are, or they aren't. But a lot of law is arguing by analogy, and this is an analogy that has enough strength to hold water as the laws are currently written and interpreted.
And I now have a hunch that if a media company tried to strike at fan-creators, it wouldn't be too difficult to find support for a fight against a media company among the users of sites like Digg. I may be wrong, and I hope, hope that there will never be a test case. But it's an interesting environment, and it's fascinating how different it is now from what it was five or seven years ago.
But if Digg, who say they get a few Cease & Desist letters each week from people claiming something on the site infringes on their copyright and should be pulled pursuant to the Digital Millennium Copyright Act, are choosing to say that the key code is so public that they shouldn't suffer for allowing distribution of it, how will the case that may develop from this situation impact fan-writers, fanartists or vidders?
No clue. But it's going to be really interesting to watch.
In this specific instance, I see what LJ is doing in deeming listed Interests as "promotional" as a parallel to what meta tags do in the broader internet - they (arguably) help users find other pages/journals/communities with a specific tag.
What I don't understand is why LJ's lawyers concluded
material which can be interpreted as expressing interest in, soliciting, or encouraging illegal activity places LiveJournal at considerable legal risk. When journals that contain such material are reported to us, we must suspend them. Because LiveJournal's interests list serves as a search function, and because listing an interest enables other people also interested in a similar topic to gather and/or congregate, we have been advised that listing an interest in an illegal activity must be viewed as using LiveJournal to solicit that illegal activity....
(That's from the quotes in FemmeQuixotic's LJ yesterday.)
There's no caselaw that I've ever seen that says that a metatag inherently solicits or encourages illegal activities. And there's no caselaw that I've ever seen that says that expressing an interest in something that is illegal is, in fact, an illegal act.
If a state was to make such a law, and say that being interested in fictional murders is the same as committing a murder, the state would be criminalizing a thought - and at least in the US - and in California, where LJ/SixApart's ToU is based - such laws cannot and do not exist.
It bothers me that LJ has lumped together "expressing interest in illegal activity" and "soliciting illegal activity", because they're not the same thing. And both are different from "committing illegal activity" (unless we're dealing with a RICO situation or conspiracy charge, which we're not).
And if DIGG is willing to see that yes, they'd be able to avoid a courtroom battle over links to the key code if they just removed all the thousands of links to said code, but choose to take a different approach and choose to stand up for their users, then I don't understand why LiveJournal and SixApart are so afraid of standing up for their users who want to read Lolita in Spanish, or discuss things that happen to be illegal or even write fiction wherein characters engage in illegal activity, which is something that professional writers have been doing for centuries if not millennia.
So I'm disapointed in LiveJournal, for not being the company that they could be. They still could, of course, take the approach DIGG took, and stop deleting things, and reinstate what's been taken away, where appropriate. As the Supreme Court said in Ashcroft v Free Speech Coalition back in 2002, in cases involving actual child pornography where real children are depicted in obscene contexts, "the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive.... Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases... We need not consider where to strike the balance in this case, because here, there is no underlying crime at all.
No. Underlying Crime. If no underlying crime exists, then how can LJ be concerned that they'll be at "considerable legal risk" if pornish_pixies is allowed to list actions that are illegal in its interest list? If there is no underlying crime at all - if all the depictions are textual or even drawn or sketched - the Supreme Court has said that it cannot be banned.
The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
Dear LiveJournal & SixApart:
That's what the Supreme Court said in 2002. Five years on, your lawyers have decided that the mere possibility - not even tendency, but something much less than that - of words and short phrases to encourage unlawful acts is sufficient reason for banning those words, and millions of other words contained in the communities that listed those words as interests.
Reexamine your decision. Get a few additional opinions from lawyers who've actually read Ashcroft v Free Speech Coalition - you can find it here if you want to read it yourself.
Remember that the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
As the court said in FSC, "the government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.” Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam). No, LiveJournal, you're not the government. But if you're going to say that you're worried about considerable legal risk, then you're worried that laws will be brought to bear on you in civil or criminal court, right?
Do you really think you're at considerable legal risk because of the content in all the journals and communities you suspended? Really?
I don't believe it.
Also, new default icon created via ImageChef.
ETA: And from the Department of Irony, Best Week Ever reports that "former Dateline producer Marsha Bartel claims the To Catch a Predator series violates journalistic standards and is, simply put, unethical. The complaint goes on to accuse the group Perverted Justice, which throws out the underaged bait and lures in the pedophiles, to be 'shady'." Her complaint in court, via SmokingGun, is here.
Why?
Because they're not as gutsy as DIGG.
Earlier this month, I posted about DIGG's decision to allow posts containing a key code used to crack DVD encryption, and I'm going to repost the whole of what I wrote then:
Some of you may've heard what Digg and a few other news aggregation-cum-social networking sites did this past week. They decided to allow postings of the code that can be used to crack the encryption on HD DVDs (and I think Blu-Ray too, but I'm not sure). You can read the BBC's article sumamrizing the situation here, or read it on ZDNet or see the Digg link-posting that has pushing 6000 "diggs" at this point on this page - it links to a youtube posting that has the key in video and text form.
I'm not gutsy enough to risk my LJ account by reposing the code - I'm still a little paranoid. But I really admire what Digg and other sites have done, and I find some parallels - and also some nonparallels - between the situation at Digg and the way a lot of fandomers look to The Powers That Be, which are some of the same people/entities - the major media producers and distributors.
Over the last 20, 30 or more years, a majority of fandomers have chosen to defer to The Powers That Be - if a cease & desist letter comes in regarding fanfic, fanart, or even fanvids, from what I've seen in the last ten years at least, a fandomer is more likely to take his or her content down than fight back and say that the fan-created content falls under fair use, or another exception to copyright or trademark law.
And the first reaction from Digg's lawyers this week (which is the same first reaction I would have had) was to take down the DRM key code. But as Alex Wexelblat wrote on Copyfight, "Digg isn't a sole-author site. Its content, like that of many Web 2.0 sites, comes from its users. Those users were inspired by this act of censorship and simply bombarded Digg with submissions containing the key sequence."
He also wrote something that made me think of the ways that fandomers frequently find to deal with attacks on their creativity from TPTB:
In the past it was fashionable to assert that the Internet treats censorship as damage and routes around it. In the current era we might say that "Web 2.0 treats censorship as inspiration and creates performance around it."
There have, of course, been occasions where people have created performances around censorship, both on the web and off. Even JK Rowling goaded Anne Rice a bit a few years ago by naming a vampire Lestoast on her website (at least, iirc it was a vampire....) and there's the whole Wizard People Dear Reader thing from two years ago.
People cope with copyright and trademark law differently than they did three or five or seven years ago. We lawyers are still as paranoid and make recommendations that the safest course, the one that will cost the least in court costs and time, is to take things down - and yes, that is still the case.
And there will always be people who choose to defer to The Powers That Be and are only playing in the sandbox as long as it's allowed by said Powers, and that's a perfectly understandable take for people to have.
I've been castigated occasionally over the years for positing that at this point in time, no major media company could win in court against fanfic writers, fanartists, or fan-content-hosting sites under a copyright infringement claim, even if the site sold ads, t-shirts or other items to cover hosting and domain fees and other expenses that are reasonably in line with the site's purpose, because all the major media companies have allowed such content for so many years that (at least in the US) statutes of limitations and laches can be used to argue that such works are noninfringing. No, there's no caselaw saying that they are, or they aren't. But a lot of law is arguing by analogy, and this is an analogy that has enough strength to hold water as the laws are currently written and interpreted.
And I now have a hunch that if a media company tried to strike at fan-creators, it wouldn't be too difficult to find support for a fight against a media company among the users of sites like Digg. I may be wrong, and I hope, hope that there will never be a test case. But it's an interesting environment, and it's fascinating how different it is now from what it was five or seven years ago.
But if Digg, who say they get a few Cease & Desist letters each week from people claiming something on the site infringes on their copyright and should be pulled pursuant to the Digital Millennium Copyright Act, are choosing to say that the key code is so public that they shouldn't suffer for allowing distribution of it, how will the case that may develop from this situation impact fan-writers, fanartists or vidders?
No clue. But it's going to be really interesting to watch.
In this specific instance, I see what LJ is doing in deeming listed Interests as "promotional" as a parallel to what meta tags do in the broader internet - they (arguably) help users find other pages/journals/communities with a specific tag.
What I don't understand is why LJ's lawyers concluded
material which can be interpreted as expressing interest in, soliciting, or encouraging illegal activity places LiveJournal at considerable legal risk. When journals that contain such material are reported to us, we must suspend them. Because LiveJournal's interests list serves as a search function, and because listing an interest enables other people also interested in a similar topic to gather and/or congregate, we have been advised that listing an interest in an illegal activity must be viewed as using LiveJournal to solicit that illegal activity....
(That's from the quotes in FemmeQuixotic's LJ yesterday.)
There's no caselaw that I've ever seen that says that a metatag inherently solicits or encourages illegal activities. And there's no caselaw that I've ever seen that says that expressing an interest in something that is illegal is, in fact, an illegal act.
If a state was to make such a law, and say that being interested in fictional murders is the same as committing a murder, the state would be criminalizing a thought - and at least in the US - and in California, where LJ/SixApart's ToU is based - such laws cannot and do not exist.
It bothers me that LJ has lumped together "expressing interest in illegal activity" and "soliciting illegal activity", because they're not the same thing. And both are different from "committing illegal activity" (unless we're dealing with a RICO situation or conspiracy charge, which we're not).
And if DIGG is willing to see that yes, they'd be able to avoid a courtroom battle over links to the key code if they just removed all the thousands of links to said code, but choose to take a different approach and choose to stand up for their users, then I don't understand why LiveJournal and SixApart are so afraid of standing up for their users who want to read Lolita in Spanish, or discuss things that happen to be illegal or even write fiction wherein characters engage in illegal activity, which is something that professional writers have been doing for centuries if not millennia.
So I'm disapointed in LiveJournal, for not being the company that they could be. They still could, of course, take the approach DIGG took, and stop deleting things, and reinstate what's been taken away, where appropriate. As the Supreme Court said in Ashcroft v Free Speech Coalition back in 2002, in cases involving actual child pornography where real children are depicted in obscene contexts, "the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive.... Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases... We need not consider where to strike the balance in this case, because here, there is no underlying crime at all.
No. Underlying Crime. If no underlying crime exists, then how can LJ be concerned that they'll be at "considerable legal risk" if pornish_pixies is allowed to list actions that are illegal in its interest list? If there is no underlying crime at all - if all the depictions are textual or even drawn or sketched - the Supreme Court has said that it cannot be banned.
The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
Dear LiveJournal & SixApart:
That's what the Supreme Court said in 2002. Five years on, your lawyers have decided that the mere possibility - not even tendency, but something much less than that - of words and short phrases to encourage unlawful acts is sufficient reason for banning those words, and millions of other words contained in the communities that listed those words as interests.
Reexamine your decision. Get a few additional opinions from lawyers who've actually read Ashcroft v Free Speech Coalition - you can find it here if you want to read it yourself.
Remember that the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
As the court said in FSC, "the government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.” Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam). No, LiveJournal, you're not the government. But if you're going to say that you're worried about considerable legal risk, then you're worried that laws will be brought to bear on you in civil or criminal court, right?
Do you really think you're at considerable legal risk because of the content in all the journals and communities you suspended? Really?
I don't believe it.
Also, new default icon created via ImageChef.
ETA: And from the Department of Irony, Best Week Ever reports that "former Dateline producer Marsha Bartel claims the To Catch a Predator series violates journalistic standards and is, simply put, unethical. The complaint goes on to accuse the group Perverted Justice, which throws out the underaged bait and lures in the pedophiles, to be 'shady'." Her complaint in court, via SmokingGun, is here.