Don't make me laugh.
5 Aug 2007 02:34 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
kaigouWarning: what I have to say here, you may not agree with. In fact, based on what I see on my flist, the majority of you may find the Other Point of View to be potentially offensive. I don't intend personal offense against anyone, but as a former business owner, I've hit my limit. SA/LJ may make an easy target, but I don't think it's the right one.
Really, IMO, the latest wank o' the fandom day isn't the fault of SA/LJ, which is trying -- and however miserably failing in terms of consistency -- to keep up with the corporate lawyers. Nor, honestly, is it really the fault of the corporate lawyers, who are just trying to cover their clients' asses in light of some really convoluted, ambiguous, and generally fucked-up state/federal laws. (For any non-US readers wondering, the US laws apply because the servers are housed in the US. Period. Until Six Apart moves to Germany and must abide by German -- or Filipino or Japanese or Antartican -- laws, it's US laws, and them's the breaks.)
Look at it this way: if I rent a house to you, and you open a meth lab in the basement -- even if I am fully ignorant of your doings -- when the DEA sweeps it, it will take my house. Lock, stock, and stinkin' barrel, and there won't be a damn thing I can do about it. If I rent you a car, and you perform illegal activities in some way associated with the car, same again: the Feds can confiscate it, auction it off, and use the money to pay for the investigation that got them the car. Fair? Not even close. The way it's done? Yeah. Anything we can do about it? Not in the short term.
If Six Apart rents you server space -- in effect, what it's doing by letting you sign onto LJ -- it comes under scrutiny as your landlord. Does it particularly want to get a cease & desist order from a copyright holder? No. Does it want to be investigated for broadcasting child pornography across state lines? I highly doubt it.
Thing is, as soon as someone brings anything matching that convoluted, ambiguous fucked-up state of affairs known as "you can't do that" laws, Six Apart must investigate and make a decision. If they don't, then they're doubly at fault, having failed to practice due diligence to make sure someone isn't setting up a virtual methlab in SA's basement. If, after such a tip, Six Apart does nothing -- and the tipster then goes on to complain to any authorities who then do find fault -- well, SA will get nailed to the wall along with the offender.
Oh, but freedom of speech, I hear! Right to speak freely!
This is where I repeat: please, do not make me laugh. What part of "privately owned business" were you just not getting? First, private owners have the right to censor what they will, when they will, within their own arena; it's only publicly-funded arenas (like public museums, grant-supported theaters, universities, etc) where the issue of free speech is both complex, bothersome, and very real. For those areas which have government support of any kind -- local, state, or federal -- then suppression of free speech by the organization could potentially be seen as suppression by the major source of funding, that is, the government.
As a private property owner, or business owner, I can and will and may suppress your free speech all I goddamned want, as long as you're on my private property. Six Apart, I'm thinking, is a sort of apartment landlord -- what we do behind closed doors (friends-lock) is our own business, and SA's TOS seems to imply (it's not well-written, granted) that flock counts as "behind closed doors" and is left alone. If we set up a soapbox in the hallway, well... we're off our "private" subset of the property, and standing firmly in SA's area of the property, and thus their rules will override our rules.
Get this clear, once and for all: the right to free speech is a right that the government will not infringe; it is not a right granted automatically by a private business.
As for the obscenity laws, please, stop citing Mapplethorpe. Please. His situation simply does not apply, not in a realistic, pragmatic sense.
You are not Mapplethorpe, I am not Mapplethorpe, and I sincerely doubt anyone we know on LJ qualifies as Mapplethorpe. On an artistic level, the chances of Mapplethorpe's allegedly obscene images being found to contain artistic value? 100%. The chance of the same for any fanartist or writer? Significantly lower, at minimum. First of all, because Mapplethorpe is, well, Mapplethorpe -- hell, no one pays over a half a million USD for a hack -- and they sure don't pay it for fanart, people. Second, because if you have someone, anyone, willing to pay even half of that half-million for your art on a regular basis, then the chances are good that if you're accused of obscenity or pornography, someone's going to step forward to pay for your court bills to contest the charges. They've invested a lot in you; they're patrons.
This is the real difference between Mapplethorpe's obscenity charge and the same leveled against an amateur (non-professional-level) artist. He could fight it, because he had benefactors -- including the museum that arranged to show his artwork. They were willing to go to bat for him, along with him, to defend his art. Who would defend a fanartist? All those folks paying $15 for a comissioned piece? Maybe... Six Apart? Hah, again, I say, hah. Fat frickin' chance.
The obscenity standards are three-fold, in the US, as I'm sure you've all heard myriad times in this wank and the previous. For Six Apart to arrange a group of what sounds like ten to twelve people -- from employees to corporate to legal -- constitutes, truly, as much of a jury of our peers as any jury we'd get in an open courtroom. And, with the emphasis on web-savvy folks in that self-arranged group, it might even be more a group of our 'peers' than any Joe, John, and Brenda plucked off an address list for their turn in the jury box.
What the hell do you want, to hand-pick the peers on your jury, yourself? The Miller Test is, however fairly or unfairly, based on local standards: and by that definition, a selection of web-savvy journal-users is most definitely our community, whether we like it or not. A group from our web-life community looked at art, and whether unanimously or in majority, determined it qualified as obscene for them personally -- and by that standard, the work is obscene. Period.
No, I don't think SA/LJ has been consistent in their approach, but I also know from experience that no one goes into a business, of any kind, with a full set of rules in place that never get questioned or changed. You just don't know what you'll need to address until you need to address it, and giving a fanartist at least enough benefit of the doubt -- however much of a star chamber you might declare it to be -- is still better than the equally-legal alternative of simply shutting down and kicking out.
That said, here's LJ's current position on the particularly-sticky issue of minors (17 and under, in US legal terms) viewing adult material on a journal. (This is from the abuse policy, which contains specifics although the TOS is considered the Final Word.)
It makes me wonder what value it holds to jump ship -- especially if you're just leaping from the Titanic to the Andrea Doria or the Estonia. Any corporate environment, once large enough to ping on the radar of state/federal authorities and/or those busybodies convinced we must all be protected from the horrors & evils that is pr0n!!! are going to be paying just as much attention, and those other journals will be wanting to protect themselves from civil or criminal suits just as much as SA/LJ, or your or I.
So, my conclusions are:
1. Flock MA and MA+ posts. (Guess what I'll be doing in the morning.)
2. At least make passable attempt to confirm readers are 18 or older.
3. Backup your journal regularly.
4. Enough with comparing LJ to the Iron Curtain. There is no comparison. None.
If you absolutely believe that you shouldn't have to flock, and shouldn't have to worry about this at all, the solution isn't to move to another privately-owned (and not by you) business arena where the managers may claim to be fandom-friendly but may find themselves less so once the corporate lawyers explain jail terms... the solution is to get yourself a copy of Wordpress, register your own URL, sign on with a hosting service that specifically allows adult material per its TOS, and blog out in the big, bad, real world of the 'net.
Which is all a long-winded, mildly ranty way to say I'll be flocking my fiction [for R/MA & above, that is] posts, adding those on my flist who wish to continue reading, and carrying on as I have been. Maybe I'll be next to be kicked in the teeth by SA/LJ, maybe I won't.
In fact, I think it's more likely my own fandom will do the kicking, after this post. Maybe I'll get proved wrong. Maybe I won't.
Eh, well: them's the breaks.
Really, IMO, the latest wank o' the fandom day isn't the fault of SA/LJ, which is trying -- and however miserably failing in terms of consistency -- to keep up with the corporate lawyers. Nor, honestly, is it really the fault of the corporate lawyers, who are just trying to cover their clients' asses in light of some really convoluted, ambiguous, and generally fucked-up state/federal laws. (For any non-US readers wondering, the US laws apply because the servers are housed in the US. Period. Until Six Apart moves to Germany and must abide by German -- or Filipino or Japanese or Antartican -- laws, it's US laws, and them's the breaks.)
Look at it this way: if I rent a house to you, and you open a meth lab in the basement -- even if I am fully ignorant of your doings -- when the DEA sweeps it, it will take my house. Lock, stock, and stinkin' barrel, and there won't be a damn thing I can do about it. If I rent you a car, and you perform illegal activities in some way associated with the car, same again: the Feds can confiscate it, auction it off, and use the money to pay for the investigation that got them the car. Fair? Not even close. The way it's done? Yeah. Anything we can do about it? Not in the short term.
If Six Apart rents you server space -- in effect, what it's doing by letting you sign onto LJ -- it comes under scrutiny as your landlord. Does it particularly want to get a cease & desist order from a copyright holder? No. Does it want to be investigated for broadcasting child pornography across state lines? I highly doubt it.
Thing is, as soon as someone brings anything matching that convoluted, ambiguous fucked-up state of affairs known as "you can't do that" laws, Six Apart must investigate and make a decision. If they don't, then they're doubly at fault, having failed to practice due diligence to make sure someone isn't setting up a virtual methlab in SA's basement. If, after such a tip, Six Apart does nothing -- and the tipster then goes on to complain to any authorities who then do find fault -- well, SA will get nailed to the wall along with the offender.
Oh, but freedom of speech, I hear! Right to speak freely!
This is where I repeat: please, do not make me laugh. What part of "privately owned business" were you just not getting? First, private owners have the right to censor what they will, when they will, within their own arena; it's only publicly-funded arenas (like public museums, grant-supported theaters, universities, etc) where the issue of free speech is both complex, bothersome, and very real. For those areas which have government support of any kind -- local, state, or federal -- then suppression of free speech by the organization could potentially be seen as suppression by the major source of funding, that is, the government.
As a private property owner, or business owner, I can and will and may suppress your free speech all I goddamned want, as long as you're on my private property. Six Apart, I'm thinking, is a sort of apartment landlord -- what we do behind closed doors (friends-lock) is our own business, and SA's TOS seems to imply (it's not well-written, granted) that flock counts as "behind closed doors" and is left alone. If we set up a soapbox in the hallway, well... we're off our "private" subset of the property, and standing firmly in SA's area of the property, and thus their rules will override our rules.
Get this clear, once and for all: the right to free speech is a right that the government will not infringe; it is not a right granted automatically by a private business.
As for the obscenity laws, please, stop citing Mapplethorpe. Please. His situation simply does not apply, not in a realistic, pragmatic sense.
You are not Mapplethorpe, I am not Mapplethorpe, and I sincerely doubt anyone we know on LJ qualifies as Mapplethorpe. On an artistic level, the chances of Mapplethorpe's allegedly obscene images being found to contain artistic value? 100%. The chance of the same for any fanartist or writer? Significantly lower, at minimum. First of all, because Mapplethorpe is, well, Mapplethorpe -- hell, no one pays over a half a million USD for a hack -- and they sure don't pay it for fanart, people. Second, because if you have someone, anyone, willing to pay even half of that half-million for your art on a regular basis, then the chances are good that if you're accused of obscenity or pornography, someone's going to step forward to pay for your court bills to contest the charges. They've invested a lot in you; they're patrons.
This is the real difference between Mapplethorpe's obscenity charge and the same leveled against an amateur (non-professional-level) artist. He could fight it, because he had benefactors -- including the museum that arranged to show his artwork. They were willing to go to bat for him, along with him, to defend his art. Who would defend a fanartist? All those folks paying $15 for a comissioned piece? Maybe... Six Apart? Hah, again, I say, hah. Fat frickin' chance.
The obscenity standards are three-fold, in the US, as I'm sure you've all heard myriad times in this wank and the previous. For Six Apart to arrange a group of what sounds like ten to twelve people -- from employees to corporate to legal -- constitutes, truly, as much of a jury of our peers as any jury we'd get in an open courtroom. And, with the emphasis on web-savvy folks in that self-arranged group, it might even be more a group of our 'peers' than any Joe, John, and Brenda plucked off an address list for their turn in the jury box.
What the hell do you want, to hand-pick the peers on your jury, yourself? The Miller Test is, however fairly or unfairly, based on local standards: and by that definition, a selection of web-savvy journal-users is most definitely our community, whether we like it or not. A group from our web-life community looked at art, and whether unanimously or in majority, determined it qualified as obscene for them personally -- and by that standard, the work is obscene. Period.
No, I don't think SA/LJ has been consistent in their approach, but I also know from experience that no one goes into a business, of any kind, with a full set of rules in place that never get questioned or changed. You just don't know what you'll need to address until you need to address it, and giving a fanartist at least enough benefit of the doubt -- however much of a star chamber you might declare it to be -- is still better than the equally-legal alternative of simply shutting down and kicking out.
That said, here's LJ's current position on the particularly-sticky issue of minors (17 and under, in US legal terms) viewing adult material on a journal. (This is from the abuse policy, which contains specifics although the TOS is considered the Final Word.)
Minors Befriending Adult-Themed JournalsI read that as: if you've got your stuff flocked, and you practice some kind of due diligence to make sure everyone's old enough to be reading... have at it.
Last updated: November 29th, 2004
The presence of minors on the friends list of a personal journal whose content primarily consists of material meeting the legal definition of "pornography".
Action
Journal owner will be required to make the following changes:
* All pornographic content be posted with security set to friends only
* All friends who do not list a complete birthdate in their userinfo, or whose birthdate indicates they are under 18, must be removed from friends list
* Journal owner is responsible for ensuring that all individuals on the friends list are over 18
After deadline has passed, Abuse Team member will verify that the above steps have been taken and that there are no longer minors present on the journal's friends list. If they have not, the journal may be suspended.
No further followup will be scheduled once compliance is verified. However, if subsequent complaints are received about the same journal, journal will be suspended pending compliance. Upon a third violation, the journal will be terminated.
It makes me wonder what value it holds to jump ship -- especially if you're just leaping from the Titanic to the Andrea Doria or the Estonia. Any corporate environment, once large enough to ping on the radar of state/federal authorities and/or those busybodies convinced we must all be protected from the horrors & evils that is pr0n!!! are going to be paying just as much attention, and those other journals will be wanting to protect themselves from civil or criminal suits just as much as SA/LJ, or your or I.
So, my conclusions are:
1. Flock MA and MA+ posts. (Guess what I'll be doing in the morning.)
2. At least make passable attempt to confirm readers are 18 or older.
3. Backup your journal regularly.
4. Enough with comparing LJ to the Iron Curtain. There is no comparison. None.
If you absolutely believe that you shouldn't have to flock, and shouldn't have to worry about this at all, the solution isn't to move to another privately-owned (and not by you) business arena where the managers may claim to be fandom-friendly but may find themselves less so once the corporate lawyers explain jail terms... the solution is to get yourself a copy of Wordpress, register your own URL, sign on with a hosting service that specifically allows adult material per its TOS, and blog out in the big, bad, real world of the 'net.
Which is all a long-winded, mildly ranty way to say I'll be flocking my fiction [for R/MA & above, that is] posts, adding those on my flist who wish to continue reading, and carrying on as I have been. Maybe I'll be next to be kicked in the teeth by SA/LJ, maybe I won't.
In fact, I think it's more likely my own fandom will do the kicking, after this post. Maybe I'll get proved wrong. Maybe I won't.
Eh, well: them's the breaks.