Law like love

[rivkat]

Over the years I've seen a number of fan fiction/copyright debates, and (as with most ideological disputes) people's convictions about fan fiction's legality correlate strongly, but not perfectly, with their convictions about its morality. But there's always a set of fan writers & readers who say, often without investigating the subject much, "I know it's illegal but it shouldn't be," and I assume some on the other side who say the opposite, though I don't hang out with them.

The exact same thing happens with discussions of art & fiction featuring underage sex. And here, frankly, we're on firmer ground than with fan fiction & copyright, since there aren't any litigated cases on fan fiction. Depictions that aren't pictures or video of actual minors are judged by the standards for obscenity, not child porn. It is true that the moral panic doesn't distinguish between those, so what the law actually says is not the end of the matter. It is also true that a given piece of fan art could be obscene (writing is much less likely to be so, though it's not legally impossible), just as a given fan story could infringe. The reason lawyers give unsatisfactory answers to reasonable questions is often that the truest answer is "it depends." Moreover, there are of course a huge number of things it's immoral but not illegal to do or say; citizens must populate that set for themselves, whether in communities or as a matter of individual choice.

I'll leave you with the Auden poem.

Comments

[harriet-spy.livejournal.com]

I've been struck by 6A/LJ's apparent inability to clearly communicate the idea that, as the legal standard is rather mushy, so must their standards be. Of course, their incapacity in this regard could be taken as a general proxy for their capacity for judgment in this matter altogether. A person who can't clearly explain the standard and the reasons for it is unlikely to be a wise and sensitive applier of that standard.

[rivkat.livejournal.com]

Here's the thing that makes me sympathetic: fandom time happens in nanoseconds. Clarifications and good corporate policy happen on a slower scale. This is fixable, if they can -- and are allowed to -- step back, take a deep breath, and think it out.

I actually think there's an interesting theoretical issue here: can one say that a well-drawn picture of this sort lacks artistic value? Easy enough with a porn mag; harder here. Which may indicate photography's lower status in the hierarchy of artistic value -- but "artistic" is part of the test.

[giandujakiss.livejournal.com]

Well, not just about hierarchy, but skill. A porn mag photo may simply not be Mapplethorpe level, and if it was, it would have artistic value, too. A well-drawn picture might be different; a poorly drawn one would not have much artistic value but also might so little resemble its subject that other parts of the test don't apply. I don't know how much the "artistic" aspect of the test takes into account skill (good art versus bad art) but since it's about "artistic value" there's the suggestion it's about value to the viewer - good art - versus the self-expressive value (which would not distinguish). But that's my mental masturbation; I haven't read cases on it.

The part that makes me totally unsympathetic to Corporate Time is the change in strikethrough appearance. That's not good faith, and that's where they lose my willingness to extend the benefit of the doubt.

[rivkat.livejournal.com]

It's been a while since I was reading in this area, and obscenity prosecutions have tanked so thoroughly that there may be no modern caselaw on the subject, but I recall that there was at least initially some concern that the topic be worthy of artistic depiction -- so a beautifully rendered garbage bin might lack artistic merit. But that makes artistic merit ultimately dependent on other factors, as opposed to being a separate route to protection, and many people would say that art has its own standards. The problem that the skill-as-merit interpretation creates is that it would protect a successful photorealistic depiction of an image that would be obscene if it were a photo. Now, given the difficulty of creating such an image and the unlikelihood that it would appear in a porn magazine, this discrepancy could certainly be tolerated; obscenity law would still mostly do its job (whatever that is). But neither position seems particularly attractive to me.

I'm sure we'll eventually hear that the change was designed to be destigmatizing. But maybe they should have announced that in advance.

[giandujakiss.livejournal.com]

They announced it in a teeny tiny little post about latest updates. And I"m sure it wasn't to be destigmatizing; it's far more confusing now because you can't tell whether you simply mistyped the name or whether the account is dead. It seems obvious that they noticed that "strikethrough" became a rallying cry; I'm sure they can come up with a post hoc rationalization but I won't buy it for a second.

why did the strikethrough go?

[buggery.livejournal.com]

But when they announced it, they said the change was only going to affect suspended/banned journals, not voluntary deletions -- it was supposed to help users figure out whether their suddenly-missing friend (or acquaintance, or, let's face it, some people have LJ enemies) had deleted voluntarily or not.

They went ahead and implemented the change of appearance for both voluntarily *and* involuntarily deleted journals. This makes a strong case for someone in an LJ/6A office cackling to themselves about stealing our rallying cry.

(PS love your Wingfield icon)

[londonkds.livejournal.com]

I suspect that the lack of a clear-cut policy may be partly tactical, as if they came up with the kind of detailed description of what was and wasn't allowed that some fans have been demanding, and if it wasn't a blanket PG rating, censorious types could go to the press with it yelling "Look at the disgusting pornographic material this 'social networking site' used by LITTLE KIDS!!! allows on its servers!!!".