A few thoughts about the fanfic debacle.

[velvetpage]

First, two disclaimers.

1) I have never written fanfic per se, but the book I've written that is actually published is only one small step from it. Some of the characters are mine, others are not, and the setting isn't at all mine.
2) This is not meant as a criticism of anyone on my friends list or off it.

I had no trouble seeing the problems with Strikethrough a few weeks ago. It was done hastily and without consultation, and had a variety of problems related to those things. LJ was right to reinstate most of those journals.

But this time? I'm just not seeing it.

California law states that child pornography is images or writings depicting minors (under 18) in sexual acts. It also states that the children do not have to be real people in order for the work to count as pornography - that is, fictional minors are not any better than real ones in terms of the legalities. Possession of child pornography is illegal, as is distribution, creation, etc, etc.

The arguments I've seen about these journals included justifications like, "The journal was entirely locked!" and "I never said ANYWHERE that the characters were under a certain age." Sorry, guys, but the argument that the journal is locked is rather like telling a judge, "The police had no right to come into my house to find the stolen goods! My front door was locked!" Livejournal still has access to your journal, even if it's locked, because it's up to them to ensure that the terms of service are being observed and to ensure that nothing illegal is happening on their site.

If the characters are fictional characters who are underage in the original works, and you don't make it clear in your writing that they're now of age, then it is reasonable to presume that they're still minors. That's what many readers will presume, in any case. So if the characters are all grown up in your writing, just say so, and you're off the hook. Otherwise, be prepared to be accused of creating child porn.

Lastly, on the topic of censorship. Is this censorship? Of course it is. Certain writings are being denied a forum here due to content; that's censorship. The next question must logically be: if it IS censorship, then how is it okay? And the answer: society has drawn lines in the sand about what constitutes protected speech, and anything that paints minors in a sexual context crosses that line. Free speech doesn't mean you can say whatever you want about whomever you want; just ask anyone ever taken to court for slander. You cannot write/draw/publish/otherwise create something society deems harmful, and hide behind free speech to get away with it. The question of whether or not this type of work should be censored is somewhat separate. If someone wishes to take Livejournal to court over this and test the laws, I wish them luck, because they're going to need it. Until someone does that, until the case law reflects a change in societal mores that might make this kind of work permissible, the publishing body (Livejournal) has every right to stick to the law and to their terms of service, and delete accounts that violate either or both.

So, I'm not even slightly up in arms about this latest round of deletions. They seem to have been done after considerable research and consultation, in accordance with the law and the terms of service.

Comments

[stress-kitten.livejournal.com]

Ooh... new drama. :-D I haven't seen this pop up on my flist yet... d'you have a link?

[velvetpage.livejournal.com]

I would expect metafandom has plenty of it, but I only know about it because one good friend is leaving LJ for another venue because of it, and another wrote a very similar opinion to this one within the last few days.

[snobahr.livejournal.com]

The police analogy isn't quite apt, since in the U.S., the police can't just enter a house out of the blue. They need a search warrant, which is generally obtained by acquiring enough circumstantial evidence and presenting that to a judge who can then issue the warrant.

This is a case, from what little I've been reading, is more like "Even though this is Dad's house, he can't come into my room because the door was locked!"

[velvetpage.livejournal.com]

Except that, legally speaking, the Dad in that analogy is responsible for whatever goes on under the roof he owns - which is to say, if he gives his kids privacy, it's a privilege, not a right, and if that privilege gets abused, it can be withdrawn, LEGALLY.

[spiralsongkat.livejournal.com]

What troubles me is that the journals were simply deleted without warning, that their creators were given no opportunity to address the problems themselves. Perhaps that would have been an unnecessary courtesy, but it would have been better customer service, IMO.

[velvetpage.livejournal.com]

That may have been true in some cases, but in others, there's documentation about LJ asking them to change things.

Even so, the terms of service don't say, "We'll ask you to fix it before we delete it." In fact, they say exactly the opposite: they reserve the right to delete without warning. It would probably have been better customer service to be consistent about it, I agree, but if the problems were pervasive throughout the journal - well.

[spiralsongkat.livejournal.com]

*nods thoughtfully*

[purplkat.livejournal.com]

Livejournal has to protect themselves. If they were to notice the problem and then sit on their butts while the people either fixed it or tried to weasel out of fixing it, and during the butt-sitting time the police got involved, there would be problems for them to the tune of 'why didn't you get rid of this highly illegal and possibly harmful stuff if you knew about it?'. I don't think the police would care much for the idea of them basically shielding a potential child pornographer by 'giving them the chance to fix it'.

Remember that you and I look at this kind of fanfic and just roll our eyes because we've seen it all before, but the police aren't going to be coming in with the same background, and they're not going to see it with the same eyes.

[spiralsongkat.livejournal.com]

Well, I wouldn't have expected them to sit on their butts for any longer than 24 hours in any case, but I can definitely see your point.

[purplkat.livejournal.com]

Yeah, I think the immediate deletion was 'covering our behinds' behavior, rather than simple 'thoughtless customer service' behavior. Whether Livejournal should have taken a small risk for its members is another question altogether. My opinion on the subject is that it would have been pretty awesome of them if they had, but it's not really worthy of condemnation that they didn't. In their shoes, I can't say that I would have acted differently.

[perlandria.livejournal.com]

The timing of the statement of protection, permanent account sale, and then bans with change to bold instead of strike in what could be seen as an attempt to keep things quiet wasn't good either. A lot of fandom who bought permanent accounts are feeling like LJ lied specifically to get the sale.

[purplkat.livejournal.com]

I haven't heard about the source of this whole debate, but it sounds pretty cut and dried. The law says 'don't write about this, not anywhere, not for any reason, not even in some papers that are gonna sit in your bedroom and never see the light of day'. Whether that law is wrong or not is, in practical terms, not really an issue.

I'm on the fence about whether the law is wrong. On one hand, child porn = Very Bad. On the other, I'm not sure it's actually bad enough to be restricted in this way in a country that's founded on free expression. I do think that circulating any kind of child porn for any kind of payment, money or otherwise, should be highly illegal. But part of me thinks that restricting child porn and not, say, hate speech smacks a bit of OMG WON'T SOMEONE THINK OF THE CHIIIIIILDREN!!!11!one!!.

Hysteria is never a good motivation for doing anything.

But regardless of whether the law is wrong or not, it's there, and people should either follow it or expect the logical consequences for their actions.

[velvetpage.livejournal.com]

I'm on the fence about designating something as child porn/obscenity when the characters are in their mid to late teens, as in the Harry Potter series. I can certainly see a case being made for it being substantively different from creations where the child depicted was victimized in order to make the porn, for example. But while that issue wends its way through courts right across the Western hemisphere and Australia, we're stuck with the laws we've got and LJ is stuck, as you point out, between their customers and the potential for legal repercussions.

[hillarygayle.livejournal.com]

I agree wholeheartedly. I do feel a bit for the fanARTISTS rather than the fanAUTHORS. It's easy to say "10 years later when Hermione was 30 she got it on with Snape", but in a picture? Not so easy to age a character & make them recognizable. Still, it's a legal hazard of their chosen hobby. They need to learn that.

[tormentedartist.livejournal.com]

I feel no pity at all for the fanfic creators. But then again I just roll my eyes at that sort of stuff.

However I don't think that if a 14 to 18 year old has sex in a story that qualifies as child pornography. Sorry moral police.

[mysirensong.livejournal.com]

I agree with Tormentedartist. If it qualified as child pornopgraphy when a teenager had sex in a story, well then Judy Bloom would be behind bars, wouldn't she? And yet, I saw a copy of "Forever" just the other day at Borders. There's a little more to the law like intent, context, etc. (Just to be sure, I think I'll send my best friend on a mission to see if he can find that book in a major book store in LA this week! Inquiring minds want to know! Seems like if it's that easy to get in NC, it's *got* to be easy to get in CA.)

But Fanfic? I think Fanfic is incredibly stupid and ridiculous. I mean, hey, if one is using it as an *excercise* that's one thing. We all need to keep the creative juices flowing. But people get so bent out of shape about what they've "created." Uh, no, you didn't really CREATE that. You took someone *else's* creation, and you drew from it. Fanfic writers user the same characters, the same settings -- if they were all practicing to go write for TV that's one thing -- you have to be able to do that in that case.

Anyway, I've missed the whole people getting deleted thing. I guess I have very little to worry about since when I do start writing again it's not going on LJ.

[velvetpage.livejournal.com]

There are corollaries, like how explicit the work is, and its "literary or artistic merit," for example. One of the things the fanfic crowd is doing, is coming up with all kinds of examples like that to point to and say, "See? This person did it, and it was fine!"

[anidada.livejournal.com]

I'm not going to get into it here -- or anywhere, really, as I'm fed up with the whole situation -- but, it's more complicated than that, and this is an area on which we're clearly never going to agree. Oh well, had to happen sometime, right? :)

[velvetpage.livejournal.com]

Yeah, we'll call "agree to disagree" on this one. I still want you for a neighbour. :)

[perlandria.livejournal.com]

You got it wrong, but I am very tired of explaining it. Not that it can't be explained. Not that the reasons you and LJ are wrong aren't true and compelling. I just don't care about LJ enough to fight for it.