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Well hell. I've spent twenty minutes digging around, and I can't find the source of the quote that's stuck with me. "Your rights stop where mine begin." You know, I really do believe that. I do. I also think if folks really behaved that way, there'd be much less room in the world for groups who want to impose their own specific morality on other folks through legislation.

What? You wanted to hear about the cruise? Next post. On catching up with LJ today, I discovered there's this kerfluffle about authors who 'overrate' their fics and are paranoid, and by extension, sites that are overprotective of minors reading fics that are rated NC17. You can read about it in harmonyfb's journal and luna_k's journal if you're so inclined. Here's my minor rant on the topic...



As a writer, I *do* overrate my fics. Excessively. I realize that, really I do. It makes me feel flat-out silly to have put an NC-17 rating on some of the schmoop I've written. I know what NC-17 is, and that ain't it. Among adults, it makes me look ridiculous. Except I presume most of them know exactly why I do it. As usual, when I assume, I do that thing. ass-u-me. So here's me, pontificating again.

I read a bunch of steamy romances when I was a teen, as well as Heinlein and a lot of other SF/F that might have actually qualified as NC17. If I'd read them online in 2003 at the age of 12 or 13 or 14 or 15 or 16, it would have been considered illegal, too.

And also as it stands today, I'm pretty sure nothing I've written qualifies as NC-17 by motion picture rating standards. But I've NC-17'd any of them that mention body parts or describe sexual acts explicitly, mainly because I want to be sure I've made the point *clearly* that I'm not targeting a child audience with my writing. NC-17 ratings protect me clearly as a writer. They won't stop a parent from coming after me when Johnny gets caught reading my ridiculously vanilla-scented, purple-tinted smutfic, but they make my intended *adult and legal* audience clear as a bell. That's important in a world where the PTC (of which, btw, my mother is a member, which gives me no *end* of headaches) works every day to punish creativity and originality when anything that remotely smacks of sexuality is concerned. I'd be even more paranoid if I had the ability to write that delicious darkfic that so many authors of legitimately NC-17-rated fics write.

I am also the owner of an archive that has what's probably one of *the* most obnoxious NC-17 warnings out there. I even use it on R fics. And there's one fic that has an "I'm 18" warning on it. I'd say that one crosses more than the usual number of lines, and it is absolutely, positively not suitable for any underage readers or many adult readers, frankly.

The age warning on the Sandlot will pop up on every single chapter of an adult targeted fic, and it will remove the page with fic on it if a person doesn't click "Yes" on the "Are you 17 or older" question. I find it annoying myself. I also find it annoyance worth bearing for the sake of having the right to read so much wonderful adult writing online. There's so little decent erotica in the soft-shelled world that I treasure what I find that's good here in cyberspace. And this little warning mechanism can be lied to just as easily as Yahoo's or many others. But you know what it does in that case? It turns responsibility for breaking the law away from my site and onto the person who lied. As long as I can prove in court (log files are great) that Little Janie told me explicitly that she was of age, her parents accusations that I'm an evil corrupter of children deliberately holds less than zero water. It's not all *that* different from the legal disclaimer on the bottom of every single page of the site that gives proper credit for the shows referred to by the content of the site. It shows I'm doing my damnedest to be a law abiding citizen while supporting the massive creative energy of this fabulous fan community.

Got a little off the point there, didn't I? But you know what? I like the archive, the germ of its creation came from ff.net's ridiculous choice to delete all adult fiction from its site rather than go to the trouble of setting up good protections (they exist -- see Yahoo's methods, or any of several other examples that have held up in court). That said, I don't want the site at risk for being deleted by my ISP or having myself become the target of some kind of predator lawsuit. I consider it my *job* to be sure that I've done what's necessary to ensure that we're not breaking any laws with the site, and if it annoys you, well, most of the fic that's there is archived elsewhere, too. Or you could sign up at the yahoo groups it's archived from (where you'll have to tell your age to gain admittance to the smut). But you won't read it at my site if you tell me you're not 17. It's not about right or wrong, it's about the *law*.

As for the parts of the kerfluffle that concern parenting... Well, let's just say I've more blunt in public on LJ than questioning the methods by which another user was parented. Basically, I don't know that I believe there is a *single* "right" method of parenting, but I do believe that there are better and worse ways, and I think that all of the better ways teach respect for other folks' rights. On the count of obnoxious, overbearing, overrated fics/warnings, it's both a legal issue and a respect issue. The law makes it clear that it is illegal to provide sexually explicit materials to a minor over the internet. Whether or not you believe the laws are right/proper/good, they are, in fact, the laws, and anyone who publicly encourages violating those laws or who openly admits lying to/ignoring warnings shows a lack of respect (intended or not) for the fic writers and archive owners whose creative endeavors are put at risk by that behavior.

As for the question of whether I think it's *right* for there to be laws that create this situation in an online environment that doesn't exist in the same way in the offline world, it's a whole other debate. Hopefully, luna will give that question another stab without the jabs at folks who are simply acting in defense of their fics and sites, because I do think it's an interesting question.

Comments

( 12 comments — Leave a comment )
(Deleted comment)
chrisjournal
Jun. 9th, 2003 08:18 pm (UTC)
Re: There ya' go Chris...sanity speaking...
Howdy & Thank you, ma'am. Fanfiction.net never fails to get my blood boiling. It's worse than irresponsibility!!
gwynnega
Jun. 9th, 2003 09:36 pm (UTC)
Welcome back, Chris! And what you had to say about the kerfuffle makes a lot of sense...
surfal666
Jun. 9th, 2003 11:12 pm (UTC)
"Your rights stop where mine begin."

Heinlein. Lazarus. The Cat Who Walks Through Walls, I believe.

You should really consult a lawyer about those 'are you old enough' popups... because they don't mean a thing legally. There are specificly designated ways to verify a person's age - notarized written documents and credit cards. Trust me - when I was webmaster for the Interactive Learning Network (an educational content provider, now defunct), I had to know all about this stuff.

I can see this travelled all over the place. I'm not going to bother responding anywhere else. How many of the people debating this actually have legal backgrounds or access to counsel to inform their opinions?
harmonyfb
Jun. 10th, 2003 03:26 am (UTC)
I can see this travelled all over the place. I'm not going to bother responding anywhere else. How many of the people debating this actually have legal backgrounds or access to counsel to inform their opinions?

I don't - I'll freely admit. However, Florida law is clear that the law is contingent on the person in question knowingly providing the material to a minor. If I have my stuff labeled, and I am vigilant about reporting minors who I do catch, then I should be relatively protected. I hope.
surfal666
Jun. 10th, 2003 06:38 am (UTC)
1) Federal law trumps state law. (See the Ed Rosenthal's prosecution.) Backward Glances would fail an obscenity test, as would about 95% of the NC-17 fiction out there.

2) What really do you expect to happen to anyone you report? You're more likely to end up getting your webhost in trouble (and that would be me) than you are preventing the underage user from accessing your material. (I've got a call into my lawyer to confirm that...)

3) You do also realize that by notifying the ISP, you are in effect providing a written confession to a felony. A prosecutor can subpoena that notification and use it against you... "The defendent has numerous times knowingly provided obscene materials to children, and has made no effort to remove said materials."

4) As the Thomas prosecution shows, if a DA wants to make an example of you, he's going to.
harmonyfb
Jun. 10th, 2003 06:59 am (UTC)
What really do you expect to happen to anyone you report?

Hopefully, that their account gets terminated, and that the reason for the termination gets reported to the adult who pays the bills and who ought to be monitoring their internet access.

You're more likely to end up getting your webhost in trouble (and that would be me) than you are preventing the underage user from accessing your material. (I've got a call into my lawyer to confirm that...)

Let me know what he says, and we'll see if we can't come up with a workable plan. I certainly don't want to get you in trouble, but seems to me that turning a blind eye to teens ignoring the ratings would be more likely to do that.

You do also realize that by notifying the ISP, you are in effect providing a written confession to a felony. A prosecutor can subpoena that notification and use it against you... "The defendent has numerous times knowingly provided obscene materials to children, and has made no effort to remove said materials."

No, I'm not - since I'm reporting them, I am preventing a felony. The key here is "knowingly". If I know they're accessing it, I'm required to do something. Which would be to report them, not remove the materials, as far as I can tell. The law appears to be a bit wobbly, since there's no monetary compensation.
I'll probably ask my lawyer friend next time I speak with her.

As the Thomas prosecution shows, if a DA wants to make an example of you, he's going to.

Sad but true.

surfal666
Jun. 11th, 2003 08:02 am (UTC)
I'm reposting in full just so you understand why this is the guy I chose as my personal legal counsel.

"The contacting the ISP stuff is not a good idea, but I see what she's getting at.

If you want to do things the right way, get signed up with an age verification service like the ones the pr0n sites use. Register yourself as an unsafe site with the cybersitter sites. There's absolutely no way to keep all the kids out, but if you make a good faith effort (or in this case, a good Faith effort) you're probably ok.

If you do that, I think you're probably ok with the popups *under U.S. law* so far as obscenity law is concerned. I don't know what could get you into trouble in England, or Japan, or god forbid Singapore, but while that obscenity test is quite accurate as to the state of US law, it's harder to get a conviction than you think. I'd be more worried about copyright stuff with fic. Honestly, with the exception of a few snuff/rape porn things on alt.sex.stories, I've never seen anything *in text* on the Internet that is unquestionable obscenity under law. Fanfic writers, even the more, um, enthusiastic ones, are generally well within the limits of the law. Keep in mind that Naked Lunch is legal in all 50 states. If you can write about people hanging each other, fucking the corpse, then setting yourself and the corpse on fire and jumping out a 50-story window, fucking all the way down, and still not be prosecuted for obscenity, then Spike, Xander, and a few dildos aren't going to bug that many people.

(The most recent obscenity cases I've read, which dealt with hardcore video rental porn in Utah, ended in acquittal. With the advent of pay-per-view porn, which is available literally everywhere in the US, it's very hard to say that anything short of say, bukkake midget bondage furry porn violates community standards, because anyone with a credit card and a remote control can watch it in the comfort of their own home. I will not consider my career as a lawyer complete until I've won at least one obscenity acquittal. I will not consider myself a success until we abolish this silly notion of obscenity from American law.)

Yer lawyer. Pass the mescaline.

Feel free to repost this if it helps. Your mileage may vary. Nobody but Surfal666 can sue me for following this advice and then getting busted, 'cause he's got me under retainer, and you don't. Nanny-nanny-foo-foo."

I <3 my lawyer.
harmonyfb
Jun. 11th, 2003 08:24 am (UTC)
surfal666, thanks for posting the letter. Makes some of the issues a bit clearer. Of course, it's muddled since some of the stories are fine for teens and some are clearly unsuitable. Going to have to think on it. Maybe moving the NC-17 fics to a separate entry page from the more general stories would be the way to go. Hmn.
chrisjournal
Jun. 10th, 2003 08:00 pm (UTC)
God, thanks for that. I was going nuts trying to remember. How appropriate, in a sideways kind of way...

For what it's worth, I did talk to a lawyer about the site before finally deciding to do it. The advice I got was basically 'don't do it unless you're willing to assume some risk.' Which was followed by, 'You probably wouldn't actually be in violation of federal law, but it's a hot button thing right now here. If you're going to do it anyway, there are a few defenses that might help you out in certain circumstances...' And then she followed it up with lots of ridiculous qualifiers and much yada yada.

Bottom line is, I thought long and hard about the risk I'm taking, and the benefit gained, then figured out what I needed to do to make my intent clear, since lack of intent to distribute to minors is my only real defense.

There are, of course, some differences between a commercial concern's legal risks and mitigations, and those of a personally run hobby site. That works as a double edged sword -- some advantages, some disadvantages. Doesn't really matter, though, since as you say later on, if Janie's mom wants to go after me, she will get a hearing and a good chance at hitting a sympathetic judge/interpretation.

You're also right about the federal law vs various state laws, but you have to survive the state battles if that's where the suit is filed, before you hit the federal laws. There are a small handful of fics on the site that have the potential to qualify as 'obscene', only a small handful. None of my personal ones come within smelling distance of it, I think. But it doesn't really matter whether it fits or not unless I'm up for chasing the thing through the court system for quite a while. And I'm not. So, I do what I can.

And if the worst happens because some younguns get caught? The archive will simply disappear. Which would be a shame. That's why I get a little miffed at the notion that because the warnings are annoying, and because they might not constitute an air-tight defense, I shouldn't bother at all. (and I don't mean miffed at you or anyone in particular -- just in the generic)

And yeah, I'm with you on the following it all over the place. I didn't follow it around very far, either. But it bugged me enough that I told Harm I agreed with her stance on labeling and posted my little two cents here.

That's my failing as a drama queen. I run out of energy on these 'issues' pretty quickly.

surfal666
Jun. 11th, 2003 08:06 am (UTC)
God, thanks for that. I was going nuts trying to remember. How appropriate, in a sideways kind of way...
If it wasn't for that, I might not have commented at all.

That's my failing as a drama queen. I run out of energy on these 'issues' pretty quickly.
For the most part, believe it or not, I don't like to argue with people. If I think someone has made up their mind on an issue, I'll usually leave them to that belief, be it right or wrong.
chrisjournal
Jun. 11th, 2003 09:02 pm (UTC)
*g* I believe you. It's a trait I admire.
( 12 comments — Leave a comment )

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