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The Terrible Secret of Livejournal, part 1: the Secret

Thu 9 Aug 2007 by mskala Tags used: , , ,

I'm hearing another round of rumours about Six Apart, the company that runs Livejournal, and its deletion of Livejournal users.  It sounds like they've changed their code to make it less obvious when a user has been deleted (by hiding usernames or something, instead of showing them in strikethrough), and they're continuing to not follow their stated policies of issuing warnings and conducting reviews and so on.  The fandom community is up in arms, and the current situation is seen as an example of Six Apart not sticking to the promises it made last time there was a round of deletions.  I think the time has come for me to reveal the terrible secret of Livejournal - the one big issue behind this situation, that neither side wants to admit even to themselves.  Because of this one big issue, I think that fandom is making unreasonable demands of Livejournal.  This is a sort of open letter or reality check for the fandom community:  you can't expect Six Apart to give you what you're demanding, and you need to recognize why.

The secret

The terrible secret of Livejournal is that a lot of fandom material is illegal.

It's not just incorrectly classified as illegal.  It doesn't just "appear" to be illegal to people who don't understand.  It doesn't just "resemble" illegal material.  It isn't just "illegal to show to minors but perfectly okay as long as you card everyone."  It's not "arguably" illegal under hypothetical assumptions that haven't been tested in court.  It's not just against Six Apart's terms of service.  It's not just disfavoured by Barak Berkowitz's personal taste.  There exists material that may be in a grey area, but a lot of it isn't.  A lot of fandom material really is definitely illegal to distribute; sometimes even illegal to possess.

I'm in Canada; most of fandom is in the USA; my comments apply to both, and to most of the English-speaking world, unless I say otherwise.

Also, it's not other people.  It's not a lunatic fringe.  It's not those perverts, or those pirates, over there.  It's not some other fandom instead of yours.  It's not just the furries or the lolicons or the Trekkies or the Ginny/Tonks shippers.  It's not only illegal in some out-of-the way country with silly nonstandard laws, but right here in North America.  It's not just the irresponsible teenagers (if you're older than 18) nor the creepy older people (if you're a teenager).  We're all in this mess together, and it's not other people.  It's your friends.  It's you.  A lot of material, even in what fandom thinks of as its mainstream - including material that you like to read and look at - is illegal.  That's the terrible secret of Livejournal.

In light of this terrible secret, and in light of the imperfect world in which it's all happening, Six Apart's actions actually make a whole lot of sense and aren't nearly so evil as fandom people are saying.

No, really

I anticipate that I'll hear a lot of whining from fandom people in the comment section of this page, and that it'll mostly consist of flimsy attempts to deny the terrible secret above.  I've written before about the common pattern of confusing one's wishes with the law, or thinking that the law isn't for real, and I think there's a lot of that going around in the current Livejournal fracas.  I expect to hear a lot of arguments of the form "Fandom material is okay because (blah blah blah), so you're wrong."  This is not about whether it's okay.  This is about whether it's legal.  Fans want all the things they like to be legal; most of them believe that all the things they like are legal; but a lot of that stuff isn't, and refusing to believe it won't help anything.

My views on these kinds of topics are no secret, but for anyone who's reading this who hasn't read the rest of my Web site:  I support an extreme interpretation of freedom of expression.  I believe that (at the very least) any fictional material that wasn't created by harming specific individual humans, should be legal to possess and distribute.  Including visual material, including advocacy of illegal acts in a general way (perhaps not specific incitement of instances of illegal acts against specific victims), and I believe that it should be legal to distribute all forms of expression even to "minors."  I also oppose all numerical age limits, including the scary ones like sexual consent that people are unwilling to think rationally about.  And I believe that copyright and other intellectual property law has been grossly extended past its reasonable bounds and that we would all benefit greatly from its being scaled back, possibly even to zero.  I think those views could reasonably be called fandom-friendly.  However, what I want is very different from the current state of the law.

First we've got the whole child pornography thing.  I'm not going to get into the whole tawdry mess of detailed definitions and technicalities.  I've written plenty on that before and others have written about it better.  Just a few points I want to make on that:

  • If it makes you moist, there's a good chance that it is pornography under a legal definition.
  • A lot of fandom material does and is.
  • A lot of fandom material includes children.
  • The words "child" and "pornography" do not magically stop having their ordinary meanings when you put them together.
  • I imply a female fan in that first point because Livejournal and the fandom subset of Livejournal are female-dominated, but of course this kind of thing applies to male fans too.
  • And crossplayers.
  • "Crossplayers" is not an error. Look it up.
  • US law is designed to criminalize visual depictions of persons under 18 engaging in sex acts, including persons who don't exist and only look under 18.
  • ETA: Ashcroft v. Free Speech Coalition of 2002 was rendered obsolete by the PROTECT Act of 2003 and the Whorley decision of 2005. If you didn't know that, then don't claim that you know more about the law on this point than I do. If you haven't read all three of those citations, then don't ask for more citations.
  • Bill Clinton notwithstanding, it includes (for instance) blowjobs.
  • It also includes creatures other than humans who only happen to look like underage humans.
  • And they still look like humans even if they have bushy tails and pointy ears.  "Anthropomorphic" basically means "looks like a human."  ("anthropo-" = "human", "morphic" = "shaped like.")
  • ETA: Child pornography is not comparable to jaywalking.  God, listen to yourselves, people!  (Yes, someone really did attempt that comparison.)
  • Canadian law covers mere words.  The US law may have some application to words also, though it's less repressive.  Both have frightening application to "advocacy" speech, which can include even very innocuous (by fandom standards) discussion of the sexual attractiveness of a fictional character - let alone actual erotic stories about underage characters.
  • Adding a disclaimer doesn't make it not child porn any more than a cargo cult building a tower and sitting in it with coconuts over their ears for radio headphones, makes it a real airport.  (Thanks catbear for the analogy.)
  • Notwithstanding that Japan is an advanced industrialized country, it is not the same place as Canada or the USA, it has a very different society that includes a great deal of social repression unfamiliar to most North Americans, it's not a Utopia of free sexual expression by any means, and what's legal and tolerated in Japan isn't necessarily legal or tolerated here.
  • Harry Potter is a child in the eyes of the law.
  • Harry Potter will always be a child in the eyes of Joe and Mary Whitebread, representing the real (not fandom) mainstream who didn't read your 10,000-word explanation of how he grew up to be an adult.
  • Child pornography is illegal even if you don't allow real children to look at it.
  • Child pornography is illegal even if you are under 18 yourself.
  • Child pornography is illegal even if you think you aren't a pervert.
  • Everyone in fandom is a pervert in the eyes of Joe and Mary Whitebread, and that's all of fandom.  Not just the HP fic community, not just fic communities in general, and not just the ones who are into sex-related material.  Fandom itself is considered a perversion.  All members of fandom are by definition perverts from a mainstream point of view.
  • Even you.
  • Judges and prosecutors tend to be members of the mainstream and not members of fandom.

But even if we could wave a magic wand and make the child pornography insanity go away, we'd still have a very big problem with fanfic and fanart:  namely, copyright and trademark law.  I'm not sure that characters, as such, are covered by copyright.  However, a lot of people think they are.  You can certainly get yourself sued good and hard if you create something involving characters from a commercial franchise, and you publish it too publicly.  Fanfic and fanart are at best legally questionable from a copyright point of view.  That's completely independent of the child pornography insanity; even with no erotic content and no children at all, a whole lot of fandom material may be illegal for that reason alone.  And let me remind you that adding a disclaimer saying you think it's legal and you don't mean any harm, doesn't help much.  Acknowledging "Such-and-such character is © So-and-so" might possibly even make things worse, because it means they can argue in court that you acknowledged that they DID have a legitimate copyright claim.

ETA: Subsequent to my first writing this here, Six Apart has (in a vague, evasive way, with a lot of qualifications), said something resembling "fanfic is okay."  It surprises me that they'd do that at all - I thought they would avoid it forever - but they're still avoiding really nailing themselves down to anything firm or definite.

The experts agree that fanfic and fanart are close enough to copyright-infringing to pose a serious legal risk to any business that touches them.  Most businesses won't touch them.  Lulu won't let you publish fanfic.  Chilling Effects (which is run by the EFF and a bunch of law schools) maintains a fanfic FAQ which attempts to interpret the law from as liberal a perspective as possible and even then doesn't really offer much comfort.  I think it's very telling that Six Apart has been silent on this point.  They've never actually said "fanfic is okay" or "fanfic is not okay."  They've never officially acknowledged that fanfic is the whole point of Livejournal for many Livejournal users.  More on that later.

Furthermore, there are trademarks to worry about as well.  I think the copyright issue may be to some small extent a grey area.  It's not grey enough for you to feel safe that fanfic is definitely not copyright-infringing, but I think it's grey enough that I'd like to see some test cases happen to someone else, not me or my friends.  I actually think trademarks are a more serious issue, because trademarks have the use-it-or-lose-it property.  The copyright holders on Harry and company might choose to turn a blind eye to the possible copyright issues, if they think fanfic is good for the franchise or they just don't want to draw attention to fandom.  But the trademark holders (in particular, Warner, who hold some trademarks on the films) can't do that.  If you don't enforce a trademark, you can lose it; so they've got to pursue anything that looks like a trademark infringement.  And of course, the same issues apply to all of fandom, not just Harry Potter.  I'm using him as an example just because he's popular on Livejournal.

Oh, by the way, those "user pics" everyone thinks are so cool?  Copyright and trademark violations all over the place there.  I'm always amused by the people who add text to a television screen cap or whatever, and then get upset when someone else "steals" the resulting user pic.  If using it without your permission were "stealing," then creating it in the first place without the original show's copyright holder's permission would be at least as much so.  I think both should be allowed.  The law says neither is really okay.  Accepting one as okay and not the other is just silly.

Next: is fandom mainstream?

Comments at end of article.

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