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So, during the linkhopping to see what was going on during the Great LiveJournal Deletion and Paranoia Event, I wound up reading the LiveJournal terms of service. I thought I'd read them before I signed up -- no Yahoo type "all your content are belonging to us" for me again, thanks -- but apparently, I didn't read closely enough, because some of the terms of service are just ... odd.
Terms of Service:
OK, fine, yes. Although that only marginally has anything to do with what's going on -- it's hard to say that any of the content being deleted is, in and of itself, illegal, but it's not necessarily an objectionable condition to set.
Again, not necessarily objectionable -- although I will note that in the case of the communities and journals being deleted, LJ is making no such requests. They're just a-zappin'. In any event, to invoke the above condition, someone at LJ has to actually read and analyze your content, and there's no evidence that they're doing much of that, either, considering what's getting deleted.
I will also note that, according to the Warriors for Innocence site -- you can find it on your own -- LiveJournal has, until now, strenuously resisted deleting for content reasons, on what seems to be sound legal ground, saying “…we cannot take action on content which is merely descriptive or philosophical in nature..” and "Further, we regard the description of an illegal activity, an interest in an illegal activity, fantasizing about illegal activity, or even admitting to an illegal activity as something other than the commission of that activity. That is to say: writing a LiveJournal entry about having sexual attraction to minors is different than using LiveJournal to solicit a minor for sexual contact. The first is something on which we are unable to take any action; the second is something that we would consider actionable...” Judging from recent actions, this seems to be a line that no longer exists.
The "we are not Yahoo and don't assert that we own your content" condition, yes, as well as the "if you plaigarize/steal content from someone else who asserts and can back up said assertion, we will probably yank your journal" clause, yes. It would, in fact, be possible, if not terribly probable, for LJ to yank all fanfic communities and journals based on that condition alone. But that's not what they're doing.
OK, now wait. You assert that I own and control my content (see term 3, above), but then you assert that you can resell my own content back to me? How on earth is that even legally possible?
And that would be the "Forget all the good manager talk that preceded this; we can delete or refuse to delete for any reason at all." After all, everyone's content will be "otherwise objectionable" to someone who disagrees. The SixApart/LJ crew do seem to have been tolerably decent stewards until now. I wonder if there was a change of lawyers in their corporation, or if someone actually did bring a lawsuit. Or if the entire Myspace/Sex Offenders/Attorneys General brouhaha scared the legal snot out of them. After all, Six Apart/LJ seem to have been successfully and easily ignoring these people, and then suddenly, almost overnight, the Delete Fairy wields her magic wand with excessively wild abandon. (She has, rather surprisingly, seemingly left most of the Supernatural tv show fanfic communities alone. Maybe incest between adult fictional characters -- even if they are someone else's media properties -- just doesn't quite rise to that level, trigger keywords aside.) And in any event, this appears to be getting invoked through a peculiar process; interest groups are complaining to the advertisers, who are then poking SixApart and saying, "Hey, fix this. We don't want our ads on pages like that," without actually knowing if they are, in fact, pages like that.
The question does arise: who precisely are Six Apart's customers? They're likely to lose a great many paid accounts over this -- not least because they have declined so far to either explain themselves, or say even that they will explain shortly. That said, paid accounts don't cost all that much. They must have done the cost analysis and figured that (1) most people won't leave, (2) most people on LJ aren't in fanfic or other communities getting hit hard, and they won't even notice; (3) even allowing for a hefty number of paid account departures, it probably takes several hundred paid users to equal just one or two advertiser accounts, so it'll be much easier to let the paid users go.
It will be interesting to see what happens once this all settles down. Most of the affected communities (and many that hadn't been touched, I think) will reconstitute themselves elsewhere. The base (old) LJ code is still out there a free download, as are other weblog programs that allow a sort of community feel. They'll likely just put themselves somewhere more discreet. All this will do is to drive a great many legitimate users away from LJ, and to drive the actual shady ones deeper underground.
EDIT: For what it's worth, WfI says that it complained about specific communities and journals; it's LJ's own doing that their deletion was so spectacularly overbroad. That would seem to be a reasonable assertion, frankly; this smacks of corporate overreaction. They also assert that LJ changed its Terms of Service in response to the action; however, according to what comes up from the Google cache -- unless they were spidered yesterday or today -- the LJ terms of service are as they were a year ago.
Terms of Service:
You agree to follow the following guidelines for posting Content to your online journal:
1. All Content posted to LiveJournal in any way, is the responsibility and property of the author. LiveJournal is committed to maintaining the Service in a manner reasonably acceptable to all audiences but is not responsible for the monitoring or filtering of any journal Content. Within the confines of international and local law, LiveJournal will generally not place a limit on the type or appropriateness of user content within journals. Those users posting material not suitable for all audiences must agree that they are fully responsible for all the Content they have posted anywhere on the Service. Should Content be deemed illegal by such law having jurisdiction over the user, you agree that LiveJournal may submit all necessary information to, and cooperate with, the proper authorities;
OK, fine, yes. Although that only marginally has anything to do with what's going on -- it's hard to say that any of the content being deleted is, in and of itself, illegal, but it's not necessarily an objectionable condition to set.
2. Should any Content that you have authored be reported to LiveJournal as being offensive or inappropriate, LiveJournal might call upon you to retract, modify, or protect (by means of private and friends only settings) the Content in question within a reasonable amount of time, as determined by the LiveJournal staff. Should you fail to meet such a request from LiveJournal staff, LiveJournal may terminate your account. LiveJournal, however, is under no obligation to restrict or monitor journal Content in any way;
Again, not necessarily objectionable -- although I will note that in the case of the communities and journals being deleted, LJ is making no such requests. They're just a-zappin'. In any event, to invoke the above condition, someone at LJ has to actually read and analyze your content, and there's no evidence that they're doing much of that, either, considering what's getting deleted.
I will also note that, according to the Warriors for Innocence site -- you can find it on your own -- LiveJournal has, until now, strenuously resisted deleting for content reasons, on what seems to be sound legal ground, saying “…we cannot take action on content which is merely descriptive or philosophical in nature..” and "Further, we regard the description of an illegal activity, an interest in an illegal activity, fantasizing about illegal activity, or even admitting to an illegal activity as something other than the commission of that activity. That is to say: writing a LiveJournal entry about having sexual attraction to minors is different than using LiveJournal to solicit a minor for sexual contact. The first is something on which we are unable to take any action; the second is something that we would consider actionable...” Judging from recent actions, this seems to be a line that no longer exists.
3. LiveJournal claims no ownership or control over any Content posted by its users. The author retains all patent, trademark, and copyright to all Content posted within available fields, and is responsible for protecting those rights, but is not entitled to the help of the LiveJournal staff in protecting such Content. The user posting any Content represents that it has all rights necessary to post such Content (and for LiveJournal to serve such Content) without violation of any intellectual property or other rights of third parties, or any laws or regulations;
The "we are not Yahoo and don't assert that we own your content" condition, yes, as well as the "if you plaigarize/steal content from someone else who asserts and can back up said assertion, we will probably yank your journal" clause, yes. It would, in fact, be possible, if not terribly probable, for LJ to yank all fanfic communities and journals based on that condition alone. But that's not what they're doing.
4. LiveJournal reserves the right, without limitation except by law, to serve any user Content on the web, through the downloadable clients and otherwise. LiveJournal also reserves the right, without limitation, to resell any portion of a user's LiveJournal back to that individual;
OK, now wait. You assert that I own and control my content (see term 3, above), but then you assert that you can resell my own content back to me? How on earth is that even legally possible?
5. You acknowledge that LiveJournal does not pre-screen Content, but that LiveJournal and its designees shall have the right (but not the obligation) in their sole discretion to remove or refuse to remove any Content that is available through the Service. Without limiting the foregoing, LiveJournal and its designates shall have the right, but not the obligation, to remove any content that violates the TOS or is otherwise objectionable, or that infringes or is alleged to infringe intellectual property rights. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. Furthermore, LiveJournal reserves the right to limit access to your journal, if found in violation of the TOS, including without limitation the Member Conduct described below, by removing the journal and related user information from the member directory, search engine, and all other methods used in conjunction with finding LiveJournal's users.
And that would be the "Forget all the good manager talk that preceded this; we can delete or refuse to delete for any reason at all." After all, everyone's content will be "otherwise objectionable" to someone who disagrees. The SixApart/LJ crew do seem to have been tolerably decent stewards until now. I wonder if there was a change of lawyers in their corporation, or if someone actually did bring a lawsuit. Or if the entire Myspace/Sex Offenders/Attorneys General brouhaha scared the legal snot out of them. After all, Six Apart/LJ seem to have been successfully and easily ignoring these people, and then suddenly, almost overnight, the Delete Fairy wields her magic wand with excessively wild abandon. (She has, rather surprisingly, seemingly left most of the Supernatural tv show fanfic communities alone. Maybe incest between adult fictional characters -- even if they are someone else's media properties -- just doesn't quite rise to that level, trigger keywords aside.) And in any event, this appears to be getting invoked through a peculiar process; interest groups are complaining to the advertisers, who are then poking SixApart and saying, "Hey, fix this. We don't want our ads on pages like that," without actually knowing if they are, in fact, pages like that.
The question does arise: who precisely are Six Apart's customers? They're likely to lose a great many paid accounts over this -- not least because they have declined so far to either explain themselves, or say even that they will explain shortly. That said, paid accounts don't cost all that much. They must have done the cost analysis and figured that (1) most people won't leave, (2) most people on LJ aren't in fanfic or other communities getting hit hard, and they won't even notice; (3) even allowing for a hefty number of paid account departures, it probably takes several hundred paid users to equal just one or two advertiser accounts, so it'll be much easier to let the paid users go.
It will be interesting to see what happens once this all settles down. Most of the affected communities (and many that hadn't been touched, I think) will reconstitute themselves elsewhere. The base (old) LJ code is still out there a free download, as are other weblog programs that allow a sort of community feel. They'll likely just put themselves somewhere more discreet. All this will do is to drive a great many legitimate users away from LJ, and to drive the actual shady ones deeper underground.
EDIT: For what it's worth, WfI says that it complained about specific communities and journals; it's LJ's own doing that their deletion was so spectacularly overbroad. That would seem to be a reasonable assertion, frankly; this smacks of corporate overreaction. They also assert that LJ changed its Terms of Service in response to the action; however, according to what comes up from the Google cache -- unless they were spidered yesterday or today -- the LJ terms of service are as they were a year ago.
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From:
no subject
Here are the three conflicting drives:
1. Although nothing is certain, it looks right now like the best way to avoid getting dragged into court as a co-defendant/accessory, should one of your users get sued or in trouble with the law over something they wrote, is to take the "common carrier" or ISP defense - "we have absolutely no control over user content, so we are not legally liable for anything they do or say." This is a fine tactic and I endorse it.
2. However, it has happened once or twice that someone said to the ISP (in essence) that they had an obligation to police content, that the common carrier defense wasn't going to play. Hence the "If someone complains about it, we may have to do something about it" section.
3. And any administrator of any content system is going to maintain the option to delete you without reason. I go along with this too. This is the bartender rule: "I can throw you out of my bar, anytime, for any reason. In fact, I don't have to give you a reason. You are here at my sufferance."
The problem is that these three do not sit comfortably with one another from time to time. All that said, this isn't the weirdest TOS I've ever seen, and it is far, far from the most Draconian in terms of content control. I tend to believe that Six Apart's heart is in the right place in that they basically do not want to censor; I suspect that they jumped the opposite way this time not because the screeching of the harpies was so loud, but because they got paranoid that there might actually be something which could have legal repercussions for them if they let the content stay. Sad thing is, especially with the vaporous state of the law in re web content, they could be right.
By the by, I believe the weird #4 clause is so that LJ can feature or otherwise link journal content on their global pages without a user getting testy, or sell them upgraded journal services without someone saying, "Hey, they're my words, you're not allowed to ask me for more money so I can continue to see them."
From:
no subject
You agree to NOT use the Service to:
Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable; [...] 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.
They really need to bring the two sections into agreement; at the least, they need to be far more explicit in the last item of Journal Content that they can and will delete accounts and journals Just Because They Want To. (And, honestly, the sheer overbreadth of this purge clearly amounts to Just Because.)