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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

belleweather
May. 30th, 2007 02:01 am (UTC)
I think this would be a really good idea. I don't think that a class action suit would be appropriate (see my response to Heidi), but I do think this would be a great way to push back -- especially if there were a way to get other members of the community involved; perhaps people who have posted to pornish_pixies or had deleted journals?

I don't buy LJ's legal arguments about their liability. But they've shown over and over and over that it's something they're really concerned about and that legal threats get results. God knows that concerned users don't... I had the misfortune of being around during NippleGate in the parenting communities, which showed that pretty clearly.
elements
May. 30th, 2007 03:51 am (UTC)
That's the real issue to me. I don't know if there's necessarily a legal argument against LJ - the only thing I guess would be if they violated their own TOS or Abuse procedures in any way in the handling of these specific cases. Unless there's something that protects a user against a TOS being applied in an overbroad manner, ie equating objectionable interests to illegal interests?

There absolutely is an argument that can be made by users, en masse, with legal backing, that LJ's cry of legal liability is insincere, and that LJ should either publicly admit that it just doesn't want to stand behind all of its users, or work with its users and lawyers to find a way to make the Abuse process sane for innocent journals caught in the crossfire. It should not be possible for the mere report that a journal has an undesirable (not illegal!) interest listed to *require* LJ to suspend that account permanently. They can't hide behind US law when incest is not illegal, and is certainly not illegal to talk about.

I mean, incest is not the same thing as paedophilia. The argument that having an interest listed can be equated with encouraging others to engage in an activity is a bit of a stretch to me, but even if you accept that, as far as I'm aware, not being a lawyer or ever having investigated, I don't believe that consensual incest between adults is actually illegal (no matter how squicky). And if it's not actually illegal to do, then how could it be illegal to somehow incite others to consider doing it by listing it as an interest? So LJ's argument about being legally forced into this falls apart, and it's revealed as a PR game all along.
unperfectwolf
May. 30th, 2007 03:58 am (UTC)
LJ should either publicly admit that it just doesn't want to stand behind all of its users, or work with its users and lawyers to find a way to make the Abuse process sane for innocent journals caught in the crossfire.

Or they could make a post at all. Somewhere. It would be nice.
greeneyedtengu
May. 30th, 2007 08:22 pm (UTC)
Instead of saying that there are no deletions when questioned Monday when word came, then Tuesday *wham*.
elfwreck
May. 30th, 2007 04:08 am (UTC)
Pedophilia is not illegal either. ACTING on it is illegal.

Consensual incest between adults is illegal for some values of "incest," which varies by state. Incest in the non-legal sense of "sex with a relative" may or may not be illegal, depending on state. (In some states, first cousins may marry; in others, they may not. Many people would call it incest in either case.) Incest, like "violence" is a general term for a range of actions, some of which are crimes.

belleweather
May. 30th, 2007 04:33 am (UTC)
There absolutely is an argument that can be made by users, en masse, with legal backing, that LJ's cry of legal liability is insincere, and that LJ should either publicly admit that it just doesn't want to stand behind all of its users, or work with its users and lawyers to find a way to make the Abuse process sane for innocent journals caught in the crossfire. It should not be possible for the mere report that a journal has an undesirable (not illegal!) interest listed to *require* LJ to suspend that account permanently. They can't hide behind US law when incest is not illegal, and is certainly not illegal to talk about.

Exactly. I don't think there's grounds for a lawsuit (at least, not a successful one) but I absolutely think that there needs to be a strong reply from the community and that that reply needs to have legal backing -- something more than the lawyers in fandom. I'd love to see some of the legal academics working in internet and society law putting their names behind this, actually. It's just been my experience that even a loud public outcry by a large number of users and even activists gets ignored and poo-poohed by Six Apart, and I'm wracking my brain trying to figure out ways to make a stronger statement that will be listened to.
bookshop
May. 30th, 2007 04:35 am (UTC)

The legal academics are working on it, trust me. You basically hit it right on the money. I have a feeling we'll be hearing from people and blogs outside of LJ about this soon.
tropes
May. 30th, 2007 12:41 pm (UTC)
That's something that really threw me -- incest is not illegal! How can they include it under a list of illegal activities?
Jaysus.
heidi8
May. 30th, 2007 01:20 pm (UTC)
Technically, incest is illegal in California - CPC Section 285 (I looked it up), but the definition is limited to fornication or adultery within the degrees of consanguinity that would bar marriage.

But the issue, as you've said, isn't whether incest is illegal or not - the issue is whether the discussion of it is illegal or not, and I think everyone would agree that it is perfectly legal to discuss it or to write about it. Bigamy is also illegal in California, but I don't see LJ going after communities focused on Big Love - and I don't see many people complaining that said show should be banned because it's premised on illegal activity. Or look at The Riches. If only there were LJ communities for *those* shows (instead of myspace pages) - I'd wonder what they have in their Interests sections.

I believe that LJ's complaint that they are at serious risk because of the listing of certain interests is insincere and not legally tenable under California law. I believe that LJ may in fact be at risk because of the content of some journals and communities, but their response of deleting said journals and communities violates their own Terms of Use, which incorporates the FAQ and Privacy Policy by reference.

I think that the best thing would be for femmequixotic, as an injured party, to go to ChillingEffects and/or Harvard's cyberlaw clinic, and/or Henry Jenkins, and see if they can help. They have processes and structures in place to deal with this sort of thing. The risk, of course, is that the eyes of the public might turn to fandom, and I know a lot of people don't like that as a matter of principle, and I understand why they don't. And it's not a "first amendment" issue - but there are contracts between users and LJ, and I worry that LJ's gotten some bad legal advice (which sometimes happens over holiday weekends). And there's nothing that's happened yet that can't be fixed, if LJ decides to be reasonable about the law in this situation. At present, they're not.
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Nothing in this community, its posts or the comments thereto should be considered as specific advice. Your access to and use of this Community means that you understand and acknowledge that no attorney-client relationship exists between you and any poster or commenter hereto, and that the Community should not be used as a substitute for competent legal advice from a licensed professional attorney/counselor/solicitor in your jurisdiction.

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