Duck and cover: LJ and incest purging

[green_amber]

Background: I joined this community as an internet lawyer/academic, also from general sf fandom - I am neither a slash fan nor a fiction writer. Also I'm a UK lawyer, not a US lawyer. So I imagine I'm an oddity here. But I find this whole storm weird, just as I did Nipplegate. LJ is a private site. It is not a state nor a common carrier nor a "public broadcaster" with positive obligations as to content, like the BBC in the UK. It is basically a business, one which rather oddly and sweetly does not seem to try to make maximum profits when it could (charge everyone, or show everyone ads.) No one would argue that Wallmart couldn't decide whether or not to stock Hello Kitty vibrators, say, even if they were (as is likely) perfectly legal. It's Wallmart's store. And if they think those vibrators are a bit dodgy, either legally or in terms of alienating or annoying certain customers, so be it. If they were stocking stuff they thought might or might not be legal, there isn't a lawyer in the world who wouldn't advise them to dump that stuff; and that's WALMART - who have millions of dollars and lawyers to fight prosecutions or civil suits.

As for the particular bit of the storm over 6A changing T & C in mid stream - I've looked at those terms and you all clearly (for legal values of "clearly":-) agreed on joining that LJ could change the terms at any time:
"cl XIII REVISIONS
LiveJournal may at any time revise these Terms of Service by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then-current Terms of Service to which you are bound."


6Apart, I strongly imagine, have absolutely no interest in becoming a style and content dictator, even though they're quite entitled to be one, as it's their site. They're still mostly leftie california volunteers on staff after all. And their business model such as it is is clearly based on not alienating large groups of clientele. But faced with large amounts of risk, they're simply covering their back, which every lawyer in the world, including me, would strongly advise them to do, especially given they mainly provide the service for free.

The alternative is the likelihood of them at some point being sued or prosecuted out of existence just like Napster and Grokster. Would you rather have a world with LJ in it, albeit mildly policing the most extreme and likely to be dodgy of its boundaries, or a world with no LJ?

LJ isn't a "place" in cyberspace. It's a publisher and as much subject to laws and economic pressure as you and me. And whatever (some!) Americans think, the First Amendment (and the CDA and the DMCA) is not a global law and will not exculpate LJers (and 6A as the distributor and publisher) in every court in the world. LJ may currently be scared of a possible case in the US but they are also probably far far more scared of a future case in the UK or Saudi Arabia, or anywhere else they have readers, and, perhaps, assets (or plan to visit at some point).

Why do you people feel (or do you not? but this is the vibe I get..) that LJ has a moral duty to defend you over and above that of a normal business? Of, say, AOL? or Facebook? Isn't it good enough that they provide a platform for free and make efforts, it seems, not to "censor" (ie reduce legal risk) until someone with an agenda,like WFI, makes waves too big to ignore?

Alternately, would you pay say $10 a head, over any usual subscription fee, to provide LJ with a legal fighting fund? that's one way forward.

BTW I am organising a funky workshop on law and popular culture in London in SEptember - http://www.law.ed.ac.uk/ahrc/gikii/ - if anyone here would like to put in an abstract (real lawyers only, please) please do:-)

Comments

[drdoug.livejournal.com]

Why do you people feel (or do you not? but this is the vibe I get..) that LJ has a moral duty to defend you over and above that of a normal business?

I suspect it's a similar effect to the one that makes people take serious action about Israeli human rights abuses but generally not mention Saudi Arabian ones. There's a natural tendency to hold people who are closer to your views to higher standards than ones who are further away.

There's a sample thing going on here too - you're seeing an outcry here on LJ about what LJ are up to. You won't hear much at all on here about Facebook's (doubtless) numerous infelicities - those'll be done to death on Facebook. And the particularly vociferously objecting folk appear to me to be largely of the geeky/fannish persuasion. It's surely not remotely surprising that a bunch of geeks are absurdly touchy about anything that looks like censorship?

Geeks want sites to react like Digg did on its second pass at the question of links to the AACS/09 F9 issue - they'd rather they went down fighting than Do The Wrong Thing. Which - one must admit - has a certain moral consistency to it.

And yes, I bet such people would chip in for a fighting fund - tho' it'd need to be fairly specific and reactive rather than a blanket insurance-type charge on the off chance. (Which would make some business sense too: it would be tactically inadvisable IMO to leave a large sum of money around visibly for the purpose of dealing with litigation.)

[surliminal.livejournal.com]

You realise of course that "You people" was not aimed at my usual FL :-)

Otherwise yeh, the fighting fund was a genuine suggestion but yeh I take the point about honeypot litigation. I wonder if insurance could be taken which would only pay for litigation costs not damages?

[surliminal.livejournal.com]

also

has a certain moral consistency to it.

Not entirely? If all the goody sites go down fighting eg we'll all have no alternative but to be on MY Spaz - zut alors!

[drdoug.livejournal.com]

Oh, surely that's not much of an argument to a purist? If we allow the goody sites to undermine themselves by undoing what's good about them then we'd have no real alternative either.

(Not that I entirely take that position myself - I'm more of a pragmatist than a purist - but I can appreciate that perspective.)

[surliminal.livejournal.com]

yeh I get it but it is not me - I'd rather be a live louse fighting another day than a dead lion (or even a live lion!)