Art taken down...

[logansrogue]

This was a letter written to an LJ user:

Dear LiveJournal user stormcloude,

The comment you are referring to is correct; the content does not meet the legal definition of child pornography. As other, more recent entries in the community explain, however, non-photographic content involving minors in sexual situations which does not contain serious artistic or literary merit is likely in violation of Federal obscenity laws, and is content LiveJournal has chosen not to host.

Additionally, the Terms of Service (http://www.livejournal.com/legal/tos.bml) does not include any statement indicating that users will be warned prior to alternate actions. Specifically,
section XVI Member Conduct, at the bottom, explicitly states "If LiveJournal determines, in its sole and absolute discretion, that any user is in violation of the TOS, LiveJournal retains the right to terminate such user's account at any time without prior notice." While LiveJournal does not do so in the instances of many violations of the Terms of Service, the policy adopted for this particular violation is to terminate without warning. You can find information on other policies at http://ww.livejournal.com/abuse/policy.bml.

The standard for artistic merit is not whether a work simply has technical merit; it is whether there is serious artistic value that offsets the sexual nature of the content. A group consisting of members of LiveJournal's Abuse Prevention Team, LiveJournal employees, and Six Apart staff reviewed the content that was reported to us. This group decides whether material potentially in violation of this policy warrants consideration for serious artistic value. In this case, they clearly did not see serious artistic value in content that simply displayed graphic sexual acts involving minors.

Regards,
Eric
LiveJournal Abuse Prevention Team

~*~

What the fucking FUCK? I am so tempted to make macros of old Japanese tentacle-sex ink drawings and spam them with it, I swear. Cause that shit is bananas!

Oh, this also means that I'll be taking any naughty pictures down from nacey that might get me banned from that email account. I can't afford for them to rip down my beautiful Numb3rs recaps.

ETA: Okay, so I reread the letter and I now realise that there are certain areas of the law that would cause problems for 6A and LJ. What really pisses me off though, is that these users didn't even get a chance to take that stuff down. They just flat-out banned them.

Comments

[hanabishirecca.livejournal.com]

Remember that satire is protected speech. For example your Spiderman statue is very well protected.

[logansrogue.livejournal.com]

Oh shit, that's up too. Fuck. They might not see the 'artistic merit' in it. O_O

[purrdence.livejournal.com]

Yeah, but everyone knows that Spiderman's not a minor either. If you had drawn Spidey as a 10 year old, that would be a different story.

[logansrogue.livejournal.com]

But they knew that Harry wasn't a minor in that picture. That's what they say in that letter.

[hanabishirecca.livejournal.com]

I don't think you need to worry about that. I believe what is happening is a bunch of independent groups are targeting the "pedo" nature of LJ. I say that very lightly because I saw one of the two pieces of fanart taken down. Both people taken down were in pornish_pixies so I suspect someone is watching that group and similar others.

I mentioned in your other LJ post, but I'm trying to get my fandom_action group going to help LJ users know what rights they have for things like this. I know how to handle DMCA Take Down requests and I'm versed enough when it comes to First Amendment Rights. There are definite things that they can't do.

Your spiderman picture is VERY protected. I don't know how the Constitutional rights apply exactly when it comes to foreign citizens and the internet. But from my understanding, they absolutely could not take down your picture. To do so would open them up to lawsuit. You are allowed freedom of expression unless you violate their TOS which only has a provision for obscene artwork. As your art is very well protected under the 1st Amendment (or would be) and is not obscene under the legal guidelines for what obscene actually is, they couldn't use the TOS to even remove it.

Keep it up please. Pass the word.

[logansrogue.livejournal.com]

I will. Freedom of Expression is very important to me and I'll keep spreading the information as it comes to me, even if it does brand me as a 'whining fandom fen'.

[purrdence.livejournal.com]

I wish I could see the original artwork and comment to LJ/6A. It's a bit hard to just get one side of the story.

[kateshort.livejournal.com]

No they don't. Nowhere in that letter does it say that Harry isn't a minor.

They say this:

non-photographic content involving minors in sexual situations which does not contain serious artistic or literary merit is likely in violation of Federal obscenity laws, and is content LiveJournal has chosen not to host.

These are the Federal obscenity laws that they're referring to:

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html

It's not child PORNOGRAPHY, since child porn is photographic and deals with real children, by definition. However, it does still fall within child OBSCENITY, which deals with other drawn works and covers situations where the images are not of actual children (and thus can include fictional characters). That's what that sentence is all about.

[kateshort.livejournal.com]

eek! sorry for the extra bolding! I mean to bold *minors* and *obscenity* in the italicized paragraph. :P

[kateshort.livejournal.com]

Spidey's very obviously over 18.

Unless you've got stuff hosted or posted on your LJ that shows any characters *in graphic sexual situations* where the characters aren't *clearly and without doubt over 18* you don't have anything to worry about.

[logansrogue.livejournal.com]

I have a picture of Hermione somewhere, I think. She's wearing a see-through bra. I think she looks over nineteen but who knows what other people think.

[logansrogue.livejournal.com]

Ugh, things are getting so complicated.

[hanabishirecca.livejournal.com]

Where is it and would you mind if I considered using it for discussion in fandom_action? I'd have to see it first to see if it would work. But by discussing it, it puts it under artistic merit. :)

[hanabishirecca.livejournal.com]

Good for you!

[logansrogue.livejournal.com]

http://meander.artchicks.org/hermsnitchcol.jpg

That's the URL, the post is here:

http://nacey.livejournal.com/14001.html#cutid1

But I'm thinking of locking it. :T

[purrdence.livejournal.com]

According to wiki, Hermione's birthday is 19 Sep, 1979. Given the HP series (if you don't count the '19 Years Later' bit) finishes in about may/ june 1998, that puts her age at about 18. So if the picture is seen only as a picture of Hermione, US law says its ok.

-However-

According to imdb.com, Emma Watson's birthday is April 15, 1990, putting her age at 17. So according to US law, you could get into trouble for that pic while she is still underage.

[logansrogue.livejournal.com]

Okay. But two things:

- By Australian Law, she's legal.
- I'm not in America.

Now, the post is in America, but I don't know where the actual picture is hosted. It's somewhere that accepts that stuff, cause I went there specifically to host my erotic artwork.

[hanabishirecca.livejournal.com]

The thing is also about the artistic merit of the piece in question. In the case of the one logansrogue has posted, it is of Hermione with a see-thru bra of sorts.

We have what could be called a minor showing minor nudity. But it can be seen as a statement that Hermione is seen for her breasts, not for herself as a person. Voila! Artistic merit.

Then you have one of the two pictures which is of Fred and George stroking each other off. I haven't seen the picture but it could be said they are minors. And... well I haven't thought of any artistic merit for that. I'm sure there was a point in it I'm just not able to think of that myself.

[logansrogue.livejournal.com]

Any art can have artistic merit if one bullshits enough. That's the first thing I learnt in art school.

For example: Fred and George are the visual representation of self-love, and in seeing them love the mirror image of themselves, we are encouraged to love our own selves in the process.

[purrdence.livejournal.com]

Actually, unless logansrouge's actually says something like 'this is Hermione in her 3rd year at Hogwarts', then she's not a minor. She's of age according to the 'Obscene visual representations of the sexual abuse of children' legal stuff.

Same goes for the Fred and George stuff (who are of age by the end of the HP books). Some people see merit in a picture like that, some don't.

[purrdence.livejournal.com]

According to the contact info on the site where the pic is hosted, their physical address is in California, so I'm guessing the server is too.

You just might want to make it quite clear that the picture is of Hermione and not Emma Watson, because LJ can't pull 'Obscene visual representations of the sexual abuse of children' laws on you if it is of Hermione. LJ does have to comply with US law so they don't get their arses kicked and it would rather get rid of your account then get in trouble with the law.

[hanabishirecca.livejournal.com]

Then perhaps they made the decision because pornish_pixie is a slash community?

[kateshort.livejournal.com]

Doesn't matter where you are-- if it's posted on LJ so that people can see it, she has to clearly appear to be over 18.

And keep in mind that it's the Abuse Prevention Team of LJ who are deciding if the piece has artistic merit and not just technical merit. They don't care if it's being discussed elsewhere-- I doubt that they'd say "oh, someone discussed it! We can't touch it now!"

What you *can* do if you aren't sure about it, is post to lj abuse and ask them "is this okay or not okay?" and give a link to wherever else you'd hosted it (probably best if it's not on your own journal). They'll either say that it's okay, or that it isn't. You can then keep it up or take it down.

[purrdence.livejournal.com]

ya think? ;p And that is was of incest as well. More than one person out there finds that just a bit creepy.

[kateshort.livejournal.com]

Um, citation, please? I just read the code over again and I don't see *anywhere* where it says that or even implies it.

Copying and pasting from here will do, or at least cite what part it's from: http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html

[logansrogue.livejournal.com]

I'm just going to take it down and save myself the trouble.

[logansrogue.livejournal.com]

I'm taking it down. I'm not contacting them because I don't trust them. They didn't warn ponderosa or any of the other banned members. Why should I expect them to warn me?

[logansrogue.livejournal.com]

I'm no fan of incest either. I just don't like the way things were done.

[purrdence.livejournal.com]

regarding age and what age is a minor?

[purrdence.livejournal.com]

I agree it was not done well. It was however, in accordance to the TOS. Since everyone has to agree to the TOS when they join LJ, it does kind of show how many people *don't* read it properly, or any of the revisions of it. I know I didn't.

[dr-jekyl.livejournal.com]

- By Australian Law, she's legal.

But by australian law, literary works depicting people under the age of 18 in sexual situations can fall under the heading of child pornography. It matters not if they are legally of age - 18 is the magic number - or if they are fictional characters. I would be very surprised if other works were exempt from this.

- I'm not in America.

We also have laws, strongly linked to the above, that allow prosecution of Australian citizens for crimes that occured overseas, even if the crime was only an illegal act in Australia and not the host country.

Further an Australian, you also have no enshrined, constitutional right to freedom of expression. It is implied, yes, but I'm fairly certain it is not written anywhere legally binding. And, finally, as an American citizen myself, I would argue that freedom of speech must be tempered by responsibility towards said speech. Because we can say something, write something, draw something, does not nessesarily mean that we should. What is it, truly, in this expression of speech livejournal has removed, that makes it worth defending? You may have the right to say what you wish to say, but I have the right to tender my disagreement and, if it's my house, kick you out.

[kateshort.livejournal.com]

People have submitted test cases to LJ abuse, linking to the images on other sites, and have been told "this is okay, this is not so it needs to be taken down" without repercussion.

[kateshort.livejournal.com]

regarding wherever it says that if the age isn't stated then the artwork must be of legal age.

"Actually, unless logansrouge's actually says something like 'this is Hermione in her 3rd year at Hogwarts', then she's not a minor" isn't clear.

For LJ's purposes, she'd need to appear to be over 18.

[purrdence.livejournal.com]

I'm going to assume you did mean the age stuff.

Ok. We start off with:

(my bolding)

'(a) In General.— Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html

Then there is this:

For the purposes of this chapter, the term—
(1) “minor” means any person under the age of eighteen years;
(2)
(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002256----000-.html

[logansrogue.livejournal.com]

I just can't be bothered with the fuss, quite honestly. It's just one post. No biggie.

What has annoyed me the most is the utter dispersal this has caused in fandom. Such a mess!

[logansrogue.livejournal.com]

Yeah, I'd kinda forgotten about Australian Law. That pissed me off too when it happened.

For me there's no reason to make a fuss. I don't do slash, chan, any of that stuff. My characters are always over age when they indulge in sexual relations.

The way LJ has run their business, however, has caused me concern and if I don't like the way a business practices, I have every right not to do be a customer anymore. I think that's what most people are doing, really. Taking their custom elsewhere.

ponderosa's image, while explicit, was not depicting any minors. It was taken down because of a matter of taste. That bothers me. If that doesn't bother you - fine. Cool. On with your life, no problems. Me, I'd rather let LJ know that I don't feel so happy about it.

[purrdence.livejournal.com]

Hermione, at the end of the Harry Potter series, is 18, nearly 19. (http://www.hp-lexicon.org/wizards/granger.html). If LJ was to say to logansrouge 'hey she's a minor, get rid of that picture', she can say 'actually she isn't a minor' and HP canon and US law will agree with her.

[kateshort.livejournal.com]

And at the beginning of the series, she's eleven.

The age of the character has no bearing on how old the character in the picture looks. They're only going to go by how old the character looks.

Fred and George at the end of the series are at least 20. But in that pic, they looked 14-17 years old. And that pic got the other user permanently suspended. It's how old they look that counts, since it's drawn artwork. You can't pull out a birth certificate and say "this image is of someone who was 18 years, 1 month, and 5 days old at the time."

[purrdence.livejournal.com]

In LR's picture she *does* look eighteen, but the greater public are also now in the posistion to know she is supposed to be that age, as opposed to someone trying to pass off an eleven year as someone older - which I have since in HP fan pics.

I will have to take your word on the Fred and George pic, as all copies of that pic have vanished off the web.

[kateshort.livejournal.com]

She looks 18 to you. Looking at it, I could see where someone could think that the person in the image could be anywhere from 16 to 25. I think she looks around, eh, somewhere between 16 and 19, which would still fall into the grey area. That's my personal opinion. It's also a damn good piece of artwork. :) I don't find it that graphic, but I'm not sure where it would fall in terms of being sexually graphic or obscene under the US Code. Luckily, I don't have to judge it based on the policies of LJ's Abuse Prevention Team and under the guidelines of their TOS.

the greater public are also now in the posistion to know she is supposed to be that age

Doesn't matter. The context for the artwork is the work itself. When people are judging whether it looks to be an image of someone over 18 or someone under 18, all they have to go on is the image itself.

They (being both the persons filing the complaint and the persons judging the merits of the complaint) are not going to take the time to look up information in a Harry Potter lexicon. They are not going to assume that the character is a certain age based on how old the character was in the final book, whether or not it's a series of books where characters changed age or where characters were the same age throughout.

They are going to look at the image, ask whether it's a scene that's sexually graphic, ask whether the person depicted in the image appears to absolutely, possibly, or absolutely not be under the age of 18, and judge the image going from there.

For you to think that they would take the time and effort to do otherwise is naive.

[phoenixwriter.livejournal.com]

I bet no artist will be banned for drawing an awful violent scene. What's wrong with this world if sex will get you banned but bloody scene just a yawn?

[logansrogue.livejournal.com]

I have no idea. *sigh* I wish I knew why they were so psycho about the paedos. They got rid of them all in the last purge!

[zzzzsleep.livejournal.com]

Because pedos are the new boogeymen. So much can be done in the name of "think of the children!". Meh.

[logansrogue.livejournal.com]

I think it's a good front to use so they can clean up LJ's image a bit.