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I am addressing this very seriously to EVERY lawyer with legal expertise in copyright infringement and fair use, and I'm also addressing this to any lawyer well-versed in the legal statutes on internet child pornography.

As I'm sure many of you already know, pornish_pixies was permanently deleted today by Livejournal.com, along with a number of other communities with "incest" as an interest, an incomplete list of which is here.


Straight up, people. What are our options as a fandom to fight this? What are all our options to fight this, and how can we as a fandom collectively work to deal with Six Apart in this issue?

Please respond, because I really, really want to get started on the part where the fandom rallies together to make our voices heard by Six Apart.

Thanks.

Comments

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diabola_109
May. 30th, 2007 12:54 am (UTC)
i think its totally none of WFI business of what we want to view, it was our own choice to do that. If the people from WFI do not like those contents they should just ignore it, act like it never exist. There are other sites about child abuse, child sex, incest, and "other disturbing topics." Why lj? (i think there against homosexuality also -.-''') Every culture and country has different laws and views.
violet_quill
May. 30th, 2007 01:06 am (UTC)
My first reaction to this is, however much it sucks and is ridiculous, that there isn't really anything we can do from a legal standpoint. This isn't a freedom of speech issue because Livejournal isn't the government. As long as there's no discrimination involved, it can deny service to anyone it wants for any reason it wants, and trying to avoid encouraging criminal activity is probably a good reason. The fact that they're doing it the easy way (i.e. deleting journals based on interests rather than actually looking at them and trying to figure out whether there is actually criminal activity involved) is extremely sucky and unfair, but isn't infringing on our rights.

I don't think that there are any copyright or fair use issues or anything involved here, or even child pornography (because there aren't any criminal sanctions being brought against the owners of the communities, simply denial of service). But I'm just a law student, and those are just my initial thoughts.

I personally think that the only way to fight this would be with sheer numbers. A list of PAID MEMBERS (which I know there are many, many fandomers who pay quite a bit of LJ) sending a petition to Livejournal stating that they will cancel their accounts if there isn't some compromise reached MAY do something... but it would take a great deal of organization and a LOT of people. And even then, that might just be a drop in the bucket. :-\
elfwreck
May. 30th, 2007 03:58 am (UTC)
They are claiming they "must" do this because to leave the journals active would open them to charges that they support the activities in question. They are saying not "we can shut down any journal at any time" but "this is a TOS violation: you are advocating [rape/violence/incest/pedophilia/whatever] and therefore LJ must shut down your journal or be considered an accessory to the crime." (paraphrased. Probably badly. IANAL nor a law student.)

Exact quote:
...we have been advised that listing an interest in an illegal activity must be viewed as using LiveJournal to solicit that illegal activity....

They're claiming a legal reason, not "we reserve the right to refuse service to anyone," for shutting down journals. We need lawyers to tell them that listing an interest for discussion purposes doesn't indicate support of the activity under discussion.
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the cost of legal fees... - nebris - May. 30th, 2007 01:20 pm (UTC) - Expand
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(Deleted comment)
heidi8
May. 30th, 2007 01:14 am (UTC)
I'm not a litigator so I'm not sure if a class action breach of contract suit would be appropriate or not, but I can see an argument for breach of contract but only by those users who were deleted, and possibly by those who had content in deleted communities, for at least one reason.

The ToU in effect when the deletions occurred said:
The TOS constitutes the entire agreement between you and LiveJournal and governs your use of the Service...

That would imply that things like the FAQ and Privacy Policy aren't part of the Terms of Service for the site, but the ToU also says:
Instructions on how to report violations of these Terms of Service may be located at the FAQ "How do I contact the Abuse team?"

And in including that sentence, the ToU inherently incorporates the FAQ into the Terms of Use for one specific purpose - and it's a purpose regarding violations of the ToS. Since the ToS also says, "However, this provision does not apply to Content (as defined herein), or to personal information that is subject to our Privacy Policy...." it's also possible to argue that the ToS inherently incorporates the Privacy Policy as well as the FAQ.
Why is this relevant?
Because the FAQ gives certain specific reasons for suspension of an LJ:

( Read More )
Account suspensions are generally used by the Abuse Team as a last resort. In most cases, a user will be provided with an opportunity to delete any content that is in violation of the Terms of Service before his or her account is suspended. Immediate suspensions are done for certain reasons, including but not limited to:

* Denial of Service attacks,
* account break-ins,
* violation of previous Abuse Team directive,
* and journals where all material is a violation of the Terms of Service.


LJ has some leeway because of their use of the words "generally" and "including but not limited to", but I'm not sure that "inclusion of non-banned interests" would be deemed the equivalent of the listed reasons. In other words, I'm not claiming it's a foolproof argument, but it is a possible argument to make.
hesychasm
May. 30th, 2007 02:03 am (UTC)
Bleh. I just wrote up a whole post in my LJ about the legal issues, before I checked my flist. Ah, well, it was good for my brain.

How "possible" is possible, I wonder? Not saying you're wrong, because I'm still on the non-lawyer side of this whole thing (bar exam studier), but it seems to me that LJ could hide mountains in the space it gave itself with that language, you know?
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femmequixotic
May. 30th, 2007 01:25 am (UTC)
As mod of pornish_pixies I would welcome any and all legal opinions as to what could be done on my part to help.

It's been suggested by several people to me that as one of the individuals affected I submit a lawyer-approved petition/complaint to SixApart requesting reinstatement of the comm based on the FAQ. Is that possible? Is it even a good idea?
elements
May. 30th, 2007 01:30 am (UTC)
I work in an internet nonprofit center at a university that has a legal clinic on cyberlaw. Obviously I can't speak for the clinic team but it seems to me that this is something they would be interested in hearing about. If you want to talk to the clinic folks, 100% confidentially of course, to inquire about this kind of thing, I would be happy either to facilitate that or to provide you their contact information.
(Screened comment)
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miera_c
May. 30th, 2007 03:11 am (UTC)
As someone who runs a fiction community which does not contain any objectionable interests in our user interests, I'm still worried because the community includes adult content that sometimes involves illegal activity.

What I'm wondering is, will posting a disclaimer conforming to LJ Abuse's stipulations (stating that the comm doesn't endorse or approve of any illegal activity and that posting creative content or textual discussion of such things should not be held as endorsement, etc.) to the community offer any protection in the event the community is targeted? My fear is the argument offered by LJ Abuse that they had to delete those accounts without review or warning and that's the end of it. If a complaint is sent in about the community would the disclaimer act as a prophylactic the complaint?
(Deleted comment)
stewardess
May. 30th, 2007 04:38 am (UTC)
I recommend not linking directly to that group. They've been following links back.
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unfilthy
May. 30th, 2007 04:05 am (UTC)
Another Approach?
Considering that the root cause of these deletions seems to be this vigilante group (via norefer.com), who isn't working with any law enforcement agency or any of the legitimate organizations working to catch sexual predators online, I wonder whether an alternative approach would be more productive.

Perhaps instead of trying to deal with this issue through LJ, it would be worth exploring whether they're breaking any laws, whether it's possible to report their actions to the authorities, or take some form of legal action against them. I bring this up because it's not just that fandom got caught in the crossfire, but that looking at these people's site, I find the things they do (and encourage others to do) to be highly disturbing, and I believe they're doing actual harm to the legitimate efforts to catch sex offenders.

One bit of glaring idiocy I found on their site, on a page dedicated to encouraging and instructing people on how to pose as children online in order to "prevent the perverts from interacting with real kids" is this gem, explaining the last part of this charade, "the reveal" intended to scare pedophiles straight (or, outside La-La Land, likely make them more cautious):

"Revealing means that you reveal that you are not a child and you scare this guy so badly that he hopefully will stop doing this in the future. You tell him that you are going to contact LE- even though you are not going to." (here, via norefer)

Considering how incredibly stupid these people are, I'm wondering whether everything they're doing is actually legal, as well as whether any legal action can be taken against them to protect both fandom and the legitimate organizations that do actual work in this area.
sansfinpetit
May. 30th, 2007 04:33 am (UTC)
Re: Another Approach?
This is actually a very good idea. Based on what I've read about them so far, they seem to be a fishy, crackpot group of people...."organization" my arse. Vigilante's cause nothing but trouble for the people that are doing any real good....what they're doing is harmful towards the people who are professionals and the fact that they can't even name which LE group they "work with" is something that should be raising eyebrows. Also...in her response to liz_marcs:

"As I've said in previous posts, a lot of what I do never makes it onto a web page. I do a lot of work behind the scenes. Seeing infants and toddlers being raped and tortured is ugly and difficult work, but finding it and turning it in does make a difference."

Doesn't that sound like she actually seeks these people out, lets them do these horrible things to children, and then takes action? That's what it came across as to me. I am not a legal expert, nor am I a CPS worker, but I am taking a class on Abuse and Neglect in the Family right now, and if there's one thing I have learned, it is to stop the abuse before it happens. It sounds to me like this woman is doing exactly the opposite of that, and I'm sure advocates and professionals would definitely be appalled at that statement, especially coming from someone who is so determined to get "these monsters" off of the internet.
Re: Another Approach? - belleweather - May. 30th, 2007 04:37 am (UTC) - Expand
Re: Another Approach? - elements - May. 30th, 2007 07:52 am (UTC) - Expand
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WFI's Instructions for Impersonating a Child - unfilthy - May. 30th, 2007 08:21 am (UTC) - Expand
Re: WFI's Instructions for Impersonating a Child - iko - May. 30th, 2007 09:32 am (UTC) - Expand
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Re: Another Approach? - raikoala - May. 30th, 2007 08:53 pm (UTC) - Expand
Re: Another Approach? - starchildemt - May. 31st, 2007 01:15 am (UTC) - Expand
Re: Another Approach? - rayden54 - May. 31st, 2007 01:38 am (UTC) - Expand
Re: Another Approach? - dbaxdevilsfan - May. 31st, 2007 06:07 pm (UTC) - Expand
twigged
May. 30th, 2007 04:06 am (UTC)
As is pointed out here, this is not the first time pornish_pixies has been accused of encouraging pedophiles. Did the TOS change between then and now?
executrix
May. 30th, 2007 04:26 am (UTC)
Hi, retired lawyer here, glad to do whatever I can to help. As a first step, I'd suggest changing interests to read "The theme of X in fiction" rather than just "X," because fiction is not activity.

As I said in my own LJ, maybe something can be done in terms of trespass to chattel--it's one thing for a host to say "Get out of here and take your filth with you!" and another thing to make deletions without warning, resulting in loss of content WHICH BELONGS TO SOMEBODY. OK, very possibly to someone who isn't eager to step up to the plate and say "I want my porn back!" but nevertheless to somebody.

In the short run, I don't think it would be a bad idea for controversial comms to switch to MLs or even APAs.
unfilthy
May. 30th, 2007 05:04 am (UTC)
Hello there, helpful retired lawyer person! Would you mind taking a look at my comment above and telling me if you think there's anything that could be done from that angle?

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tinsolitus
May. 30th, 2007 04:42 am (UTC)
Reposted minus the link to WFI

I was just wondering if this link would be helpful at all?

www dot warriorsforinnocence dot org/2007/04/livejournal-pedophile-sympathizers dot html

WFI quotes several of LJ's previous responses to their requests of deleting communities and journals. According to the quotes, LJ says that

For instance -- as disgusting as it might be -- we can't suspend a journal because it's talking about pedophilia in a theoretical manner, or is discussing it hypothetically, fictionally, or sociologically. We also can't suspend a journal just because someone expresses an interest in children in a sexual manner. We're limited to taking action on things that specifically break the law or encourage others to do so.

Also,

In order for us to take any action against this user, the content would need to be blatantly instructional material clearly designed to facilitate the promotion of and engagement in illegal activities. We have not been made aware of any links in this user's journal which are clearly instructional and promotional in nature. While we recognize that many individuals find this journal offensive, and that many people feel that the user should be removed, it does not qualify as advocating or instructing illegal activity.

While the material is distasteful, we cannot take any action. The content falls within the realm of material protected by free speech. LiveJournal attempts to preserve as much free speech as possible for its users, as long as that speech does not cross the line into invading another's privacy, violating local or federal law, or directly inciting violence or hatred against any specific, identifiable group regardless of whether that group is explicitly named in our Terms of Service. The content of this journal does not meet that criteria at this time.

We understand that many individuals are upset about this matter and we understand that even if individuals can understand the reasoning behind our policies, it is difficult to accept emotionally. We apologize that we are unable to assist you further. We strongly suggest, with the greatest respect, that you should avoid reading the community if you are offended by the premise or contents of the journal.

Regards,
EllaLive
Journal Abuse Team

It's not hard evidence, but, it could maybe help to show how unreasonable LJ suddenly became.
longlongwaytogo
May. 30th, 2007 08:31 am (UTC)
So is this saying that they're *not* going to listen to this group?*confused*
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tamibrandt
May. 30th, 2007 05:03 am (UTC)
I may have missed the response post, BUT ....

being that this is a fandom_lawyers journal, has any lawyers here researched the LEGITIMACY of this Warriors for/of the Innocent watchdog group? Is this an ACTUAL non-for-profit 501(c) group or a paid watchdog group or is just a group of over-excited, bored-out-of-their-minds mothers sitting around a laptop in their dining room, trolling through LiveJournal and scaring the hell out of innocent fan writers/artists?

From what I understand they have a vague mission statement and absolutely nothing concrete to hold up the authenticity of their 'organization'. In fact, from what I've seen around livejournal, their actions have done nothing but cause mass hysteria and a re-enactment of the Salem Witch Hunts. Are we all in for 'false persecution' for being a part of fandom or just a select few for the topics we write about?

(sorry for delete/repost 2x, had to fix typos)
elizardbits
May. 30th, 2007 05:31 am (UTC)
The gTLD ".org" can be registered by anyone, regardless of their non-profit status, I think.

Nevertheless, the IRS charity search engine has no entry for them - at least not under any name combination I tried. Someone less exhausted (and with less general fear of them) than I could presumably call the IRS' toll free number (1-877-829-5500) and ask, I guess. But I don't think WFI actually claimed to be a non-profit, did they?

I am totally not a lawyer. I do, however, work for a nonprofit, and I've had rather a lot of (dreadfully boring) experience attempting to track down the tax-free status of random organizations. FWIW.
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orphan_project
May. 30th, 2007 05:47 am (UTC)
Unfairness never wins out in the end...
Honestly, I go into a fandom recognizing straight away that I need to place warnings and disclaimers on anything that isn't creatively mine straight up. I agree with diabola_109 that it is OUR choice to write about these things. It's other peoples choice to read it. As long as stories, fanvids, and other such things are properly labeled with the correct warnings and what not, then I honestly don't see a problem.

People who do not enjoy such things have a right to voice their opinions sure, but they also have the right and a brain, so they can walk away from it if they so choose.

Secondly, it is unfair to writers out there who come to LiveJournal to share there work and now have to F-lock everything they wish to share. I know I personally just went through and had to lock and delete things that were apparently 'against' whatever they're trying to crack up as rules.

If copy writes are noted in the disclaimers, than that takes care of that right there. If people do not try to claim characters that aren't there’s, then I don't see where there is an issue there. Using a personal example, I know for a FACT that Eric Kripke, the creator of Supernatural, reads fanfiction, and is aware of such things as Wincest and J2. While he may not support it, he doesn't come after us writers with lawsuits now does he? No.

Honestly, I think the way that they are going about this is ridiculous. I’m sure that there are PLENTY of other ways that they can handle this. Such as, oh I don’t know, emailing and giving them ___ number of days to fix and or delete the offensive materials?

These are just my opinions, so yeah. I’m sure a lot of the stuff I’ve said has already been voiced, but it’s just my stand point and my two cents being thrown into the pile.
cyranocyrano
May. 30th, 2007 04:21 pm (UTC)
Re: Unfairness never wins out in the end...
it is unfair to writers out there who come to LiveJournal to share there work and now have to F-lock everything they wish to share.

Except it looks like that's not going to be enough for this round. It sounds like they're not going any further than the Info Page and the Interests.

(The additional stupidity here is that many of these tags I'm seeing are not technically illegal. 'Violence'? Not inherently illegal. Just watch an American football game and see how many of those strapping lads are arrested for assault.)
Re: Unfairness never wins out in the end... - nescio17 - Aug. 20th, 2007 08:19 pm (UTC) - Expand
executrix
May. 30th, 2007 06:02 am (UTC)
Action Items
I used to work for a company that put stuff into plain English. My boss wasn't a lawyer, but he WAS an egomaniac so nobody ever had the nerve to tell him to stop promising to give clients "actionable strategies". ("Actionable" is lawyerese for "something you can get sued for.")

My inclination is to put together a legal defense committee (it would be possible, but, I think, overkill to apply for not-for-profit status--that application is a BEAR) and work up a report that could be used as the basis of negotiation with Six Apart and other hosts. The report would contain the kind of stuff that goes into an appellate brief. I think the report structure would be good because then we could say that X number of people and organizations have signed on to agree with the report, and then there's a minority report saying slightly different things that Y number of people and organizations have agreed to...

Short version:
* What are we going to do?
* Who, exactly, is "we"?
* Who's responsible for which tasks?
* Who's in charge of herding the cats?
* Who's pinch-hitting for those who can't/don't finish their assignments?
unfilthy
May. 30th, 2007 06:41 am (UTC)
Re: Action Items
The report would contain the kind of stuff that goes into an appellate brief.

As someone with no legal background whatsoever, I'm hoping you could elaborate on what exactly goes into an appellate brief.

What are we going to do?

I think that's still being debated, though you seem to have some idea of what we should do.

Who, exactly, is "we"?

That depends on whether you're talking about the people actually handling whatever tasks are involved, about the people who've been directly affected by the recent deletions, or about the people in fandom who've heard about this, think it's a travesty, and wish they could do something about it.

IMO, who "we" is depends entirely on what we do, which in turn depends on what we're trying to achieve, which I think should be the first question. Do we want all affected accounts restored? Do we want to make sure they're compensated for any remaining paid account time? Do we want to renegotiate the ToS or come to an agreement on how to deal with ToS disputes in the future? Do we want to get a clear and/or binding response to this unreasonable situation from either Six Apart or LJ? Do we want to deal with SA directly or keep it inside LJ? Again, I'm on the verge of brain death here, so I'm sure I'm not covering all the bases, but even so, these questions haven't been answered yet, and I'm sure there's more I left out.
Personally, I doubt we'll get anything, but I still think it's important to know what you want to achieve before forming an action plan.
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(Deleted comment)
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house_illrepute
May. 30th, 2007 06:05 am (UTC)
okay, when the whole FanLib-ToS stuff came out, I made a comment not to get riled up over their ToS because it wouldn't really tell us much about the INTENT (evil? or no?) of FanLib.

i even went to compare the ToS of FanLib with LJ, pointing out there similarities, which, if not verbatim, still held the same spirit. i was told that wasn't the case.

synecdochic provides a nice break down of LJ's ToS and FanLib's ToS.

S/he even makes the comment about knowing how LJ would handle things. Okay, I'm not one to argue.

She (sorry, I gender-assume to 'she' -- left over from DnD manuals) even points out:

There is a key difference between LJ's ToS and FanLib's, and it lies in the bits I've bolded above: LiveJournal may call upon you to retract, modify, or protect; FanLib may remove such Submissions and/or terminate a Member's access for uploading such material.


oh, the irony. but i digress.

so, i didn't understand how this could be. why is it that LJ would be so possibly nonchalant over these issues of possible IP infringement cases (that was the discussion we were on: passing the buck from angry copyright holder to LJ and finally to the author).

She said, in this comment, that basically, LJ is protected by the CDA

Okay, so basically LJ was supposed to be protected (like AOL and the like are) from being made liable due to the actions of its end-users. This was my understanding from her subsequent comment here.


So... some people objected to the clause in FanLib's ToS under the premise that LJ wouldn't do that. But it's happened. accounts were deleted/suspended/whatever.

is there a distinction between SixApart and LJ, meaning that one is protected by safe harbor and the other (SixApart) is not?

so, then, LJ's ToS means whit for naught if SixApart's ToS is far less forgiving, right?

was my understanding of this 'safe harbor' stuff not correct?

was the LJ protection under 'safe harbor' not correct?

i mean, if LJ and SixApart ARE protected from being liable of the end-user's actions, then i can only see these deletions being one of two things:

1) a massive purging based on moral opinion or principle beliefs held by SixApart themselves...

or

2) SixApart simply saying "this isn't a fight we're going to fight; sorry fanficcers" and cow-towing to a perceived economic or law enforcement backlash (ie. they fell for the Warriors of Wackness' bravado)...?

Or, since they acted on the attempt to 'purge illegal activities' does that now make it their obligation? hence, the reason why they can't unsuspend accounts to have comms change their interest?
house_illrepute
May. 30th, 2007 06:09 am (UTC)
PS. i really really think there's as much SixApart principles at work in these 'crackdowns' as anything else. and, i'm pretty sure, tho' i hope otherwise, that they'll return any "we want to write about these things" with a "well, we really don't want you to on our site".

i think knowing what their legal protections are would help determine their intentions...
(no subject) - xtricks - May. 30th, 2007 06:34 am (UTC) - Expand
(no subject) - tamibrandt - May. 30th, 2007 06:47 am (UTC) - Expand
(no subject) - abbylee - May. 30th, 2007 08:16 am (UTC) - Expand
(no subject) - house_illrepute - May. 30th, 2007 11:48 am (UTC) - Expand
(no subject) - starchildemt - May. 31st, 2007 01:43 am (UTC) - Expand
(no subject) - house_illrepute - May. 31st, 2007 02:48 am (UTC) - Expand
sweetphaex
May. 30th, 2007 06:47 am (UTC)
I am willing to fight for the community of mine they deleated - I'm not willing to DIE for it though (and by that risk my paid journal and other communities

one a fashion community "oz_lolita" a soft target purely on the name, whe egl/lolita has NOTHING to do with the book of the same name other lolita fashion communities have been alerted since some people do have lolicon as keywords and to add the word 'FASHION' after the word lolita.

and a role play archive where only 2 memebers me, and my friend (both legal adults) role play)

In my RP community there are NO incrimminating keywords "eg slash, ect" so I hope it's Safe *shifty eyes* for now

My lj and my communities are near and dear to me. The community in question: wonkaslash did have chan and shota in the key words but there was a strict policy of NO NON CON / RAPE and anything overly suspect was deleated and all trolls where swiftly given the boot my my stealthy comods.

I post her for her sake since I bequeth that community under her tight control a few years ago after I stopped caring about that particular fandom.

i am so confused and dissapointed.

I might also point out that I'm an Australian resident and I'm not sure how American laws for American built sites affect me (i should have paid more attention in leagal studies...)
loony_lucifer
May. 30th, 2007 08:01 am (UTC)
We'll fight for our beloved comm. ♥
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