viverra_libro (viverra_libro) wrote in fandom_lawyers,

WFI Debacle

I've looked at the conversations with LJ posted on WFI's journal, and I've read the replies to Femme, and the list of deleted/suspended comms. (You guys saw that there were actually three or four communities that featured real live pedophiles, right?) Based on what I've read, I think what happened is the result of LJ's attempt to avoid censoring content, and is the result of the legal recommendations made to them.

To restate, I do not think the deletions have anything to do with fandom, or a desire to censor/give in to wackos.

Here's what I think happened. Probably due to WFI's continual annoyance, LJ finally asked its lawyer to analyze whether it could be liable as an accessory to a crime if it allowed the pedophile comms to continue. The fact-pattern that LJ's lawyer analyzed assumed the worst-case scenario, (which is what lawyers do): that pedophiles would indeed find eachother by means of the interest lists, and would plan and/or commit crimes using their LJ comms as a planning ground. And I think that LJ's lawyer looked at the definition of accessory to crime (perhaps even the US pedophilia laws, which cast a pretty wide net), and said that the interests + communities could qualify LJ as an accessory to a crime. Whether it's stupid or not, whether there are a million other reasons that people could list those interests or not, the fact that they knew (allegedly) that pedophiles were using them to meet and (worst-case scenario) plan crimes, means that they would probably have liability under US law. Or, at least a case might be brought.

The thing we're all complaining about is what happened next. But I don't think they had any choice:
-- If LJ were to give notice that those interests were no longer allowed, the pedophile communities would just continue without them - which could still subject LJ to liability for future crimes that were, for instance, facilitated by using LJ as a discussion/planning ground. LJ then might very well have some sort of duty to start looking for the pedophiles, because they know they're using the site. And really, considering how quickly this got around the internet, I don't think that notifying just certain comm mods would have been something they could do.
-- And if LJ deleted *only* the pedophile comms, then it's in the position of deleting based on content -- which sets a pretty difficult precedent. Once LJ starts deleting based on content, it's a very slippery slope.
-- Another alternative was to just monitor the ped comms, to see if crimes were planned, but man, talk about a never-ending task! And what if they were wrong? How often should they monitor? How much monitoring is enough? There's no identifiable standard, no safe harbor for them. And that also sets them up for being held to have a duty to monitor comms where crimes might occur.

Yes, I think it's stupid that LJ permanently suspended journals of fictional characters, and it's a terrible loss that LJ permanently suspended fandom comms, and there's no doubt that they were over-broad in their deletions/suspensions.

But I think that it might be better in the long run that they took that approach rather than evaluating based on content. I mean, there's a clear difference between 98% of fanfiction and something a pedophile would write, but there is that 2% that's basically exceptionally poorly written (and please, you know what I mean, and I don't have time to write it out) that blurs over into what might constitute something a pedophile might write. Would we really want LJ reading and judging our comms? In a way, I think they're trying to reinforce their position that we can post whatever we want in our journals.

I don't know why, for the life of me, they didn't just do what other online comms do, and sic law enforcement on the offending comms -- perhaps they didn't want them to find fandom, or perhaps a law enforcement investigation is too intrusive from a management standpoint - I don't know.

But in sum, I don't think that the fandom deletions had much of anything to do with fandom itself - I think that they were regrettable collateral damage from having some actual pedophile communities on LJ.

As far as what we can do about it, ideally, we should have a legal analysis that goes farther than LJ's lawyer did -- that finds a way to allow fandom fic, and other content that deals with the trigger topics -- without requring LJ to evaluate content. As soon as LJ has to start evaluating content, it gets difficult for LJ to maintain its argument that it isn't responsible for the content, and to argue that it shouldn't have to police the content.

Certainly, we as users should demand an assurance that LJ will not violate its policy for suspension/deletion again, and that we can, in fact, post our fic in our comms and not be harassed. But I don't think LJ will be able to change its position on the interests.

I think that when this all settles down, there will be at least a tacit agreement that if you warn, post disclaimers that it's fiction, and don't list illegal activities in your interest list, that LJ is going to leave you alone. But that's not much comfort, is it.

ETA: I am not saying it's NOT a slippery slope. I am not saying that they *couldn't* use this rationale to ban all sorts of things. I *am* saying that I think they reacted as they did because of the particularly wide-reaching US laws regarding child pornography, and that they are unlikely to apply this tactic to future scenarios.

I am also trying to explain that I think LJ is characterizing the "interests" as a technological tool, not as content, and therefore, that banning based on interests is not the same as banning based on content. Yes, I understand that there are logical flaws in the argument. I am trying to explain that I believe they're trying to build a defensible position in case they are sued. A defensible position is not one without flaws. It's one that will result in a finding of reasonable doubt as to guilt.

Disclaimer: I am very tired, and very busy, and I wanted to get this out here because I think that a lot of the plans/protests/etc. being planned for the next few days aren't going to help (except possibly the fandom-money poll and the phone calls). Please understand that I'm paraphrasing and that I don't have time to link to all the original posts, and that everything in here may not be perfectly, brilliantly phrased, because it's either do it this way, or don't do it at all. If there's interest, I can add the links later. Further, I am required to say that this communication is not legal advice, nor does it make me anyone's personal/group lawyer, nor am I advertising for legal services

ETA2: Having just seen the c-net article, I have to say I still think this explanation/scenario/outcome is possible. No company ever wants to admit that they have recognized they might have legal liability. That said, I'm not encouraged by the CEO's response, and the only thing that will keep me on LJ now is reinstatement of the big fandom comm. Obviously, I'm not holding my breath. *G*
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