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Marta's Mathoms

Being a Collection of Fanfic, Political Musings, Memeage and Asundry Goodies

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(HP:DH spoilers below, though the post really isn't about that book.)

Okay, so I've been sitting on my hands all day, and now my fingers are getting itchy. I really, really wasn't going to comment further on the situation with LJ banning accounts for explicit artwork, but I can't resist. :-)

And there's a lot to talk about. Some people claim it's about censorship, or decency vs. obscenity, or truly abysmal customer service. And while I fully admit that the current situation is about all of those things, that's not what I'm going to focus on. Because, really, those topics are being done to death elsewhere, and there's an issue that's of particular interest to those of us in fandom.

It's this: who says eighteen is an adult? It's not in Potterverse, or Ardaverse for that matter.

In the community lj_biz (which I take to be an official statement of LJ's position), theljstaff writes:

To ensure that we are compliant with child pornography laws, we have decided to treat any content which contains a graphic visual depiction of a minor (anyone under the age of 18, as defined by Federal and California state law) engaged in sexually explicit conduct as a violation of our policy regarding illegal content

(emphasis mine)

Now, I happen to think there's a world of difference between a photo of two real people having sex, a painting of two representations of actual people (or characters that could be real people), and a painting of two characters that are recognizably from a fictional universe. U.S. law doesn't seem to recognize this difference, and I have to live with that. But since I'm a philosopher rather than a lawyer, I want to talk about what should be the case rather than what necessarily is. (If the law really does say differently, then I think the law is wrong.) And it seems to me that, if there's a reason why pornography about a literary character who happens to be a minor is wrong, then he has to be a minor by the rules of his own literary world.

It is a major plot point in both Harry Potter and the Half-blood Prince and Harry Potter and the Deathly Hallows that wizards come of age at seventeen. This is when they can legally do magic outside of school. I can't remember if it's ever made explicit, but it seems reasonable to assume that it's also the age when they are legally responsible for their crimes as adults, just as Americans (and I assume Britons) are at eighteen.

By now people following lj_biz know that two users recently had their account deleted for posting sexually-explicit HP fanart that purportedly involves a minor. One of these art pieces is posted Here. (Most definitely NWS, as it contains an explicit Snape/Harry scene.) Now, I do not particularly care for the style of this painting, but like many people I question LJ's basis for declaring that Harry is a minor. Judging just from the painting, Harry could be sixteen here, but he could also be twenty-six.

So, if Harry's not obviously a minor based on what's shown in the picture, what basis does LJ have to say this is child pornography? Because this is fanart, there are external cues. This is not a painting of some creepy old man and the next-door neighbor's daughter (who might be fifteen or nineteen). Let's assume for the moment that the picture is canonical and was posted after DH was published. LJ might reasonably conclude along the following lines:

1. Harry's birthday is July 31. He turns eighteen the summer after the events of DH.
2. Snape dies before the end of DH.
3. Snape is in this painting, and appears to be very much alive.
4. Therefore, Harry must be under eighteen.

According to U.S. law as I understand it, a sexually explicit painting involving a 17 year old would run into problems with pornography laws. But Harry is not American, or even some backstory-less person who could be imagined as an American. This isn't like porn produced legally in, say, Scandinavia (where to be child porn a character has to be under their age of consent, fifteen) and exported to America. Harry is a highly recognizable member of a fantasy universe, and members of the fandom will know the rules that govern that society.

(And let's be honest, people outside the fandom aren't likely to be looking at fanart. There's a lot more titillating and readily-accessible pornography out there, as I found when I was googling for info on the laws governing child pornography.)

Harry doesn't even seem to have the Muggle British laws apply to him. Harry is a character in a larger story with its own rules. When Sirius Black is accused of killing loads of wizards and muggles in his attempt to kill Pettigrew, he's sent to Azkaban, not Alcatraz. As Rowling sets it up, wizards are punished according to wizard laws. Even when the crime affects Muggles. If there are wizarding statutes defining child pornography (and I hope to God there's no need!), it would certainly be based on their own age of majority. Which is seventeen, not eighteen.

So a sexually explicit picture depicting 17yo Harry and a much older Severus Snape would be.... Well, I don't like it and am pretty squicked by such a huge age difference for such a young man, but it certainly shouldn't be illegal.

So, if I don't really care for the painting and am even pretty squicked by it, why does it bother me that LJ is deleting accounts where such artwork is posted? I've been thinking And I've finally realized the why it bothers me. If Harry is an adult at eighteen rather than seventeen, elves in Ardaverse are likewise adults at eighteen. And that's a problem!

Tolkien tells us a bit about elven aging in "Laws and Customs of the Eldar", in HoMe Vol. 10:

At the end of the third year mortal children began to outstrip the Elves, hastening on to a full stature while the Elves lingered in the first spring of childhood. Children of Men might reach their full height while Eldar of the same age were still in body like to mortals of no more than seven years. Not until the fiftieth year did the Eldar attain the stature and shape in which their lives would afterwards endure.

So.... assuming the Edain kept growing at least as long as modern man, the phrase "hastening on to a full stature" would describe someone around the age of 19 or 20. (I'm going on memory here, but I'm pretty sure my brother still grew a little taller after he was eighteen.) In any event, let's be very generous and avoid the fact that some people think Edain grew slower than modern men, and that modern men might grow even beyond the point at which they are legally children. Let's assume an eighteen-year-old Elf would look like a seven-year-old human. Strike that, a human "of no more than seven years". Yet, as I understand LJ's policy, a depiction of an eighteen-year-old Legolas having sex--which would look like a seven-year-old Legolas having sex--is not against LJ's TOS, but Ponderosa's picture is against the TOS. Remember, in this latter picture, Harry is an adult according to the rules of his society. Legolas in my hypothetical situation is not an adult. He wouldn't even look like a teenager.


Actually, the whole thing reminds me of the way that some people think that fantasy, and in particular the Harry Potter books, are "evil" because they glorify witchcraft. Both LJ and these Potter naysayers would do well to remember Lucius's statement to Harry near the end of the Order of the Phoenix movie: You know, you really should learn to tell the difference between dreams... and reality.

Because context matters. A character who is an adult in his culture, and where people in the fandom will see him or her as an adult, that's not child pornography. And just because a character is eighteen, that doesn't make the piece not child pornography if eighteen is still a child in that culture.

This inflexibility in the current rules for what is acceptable is a problem for fandom. And it seems to be a point that other people don't seem to be discussing much. So I thought I would.

That is all. You may now return to your normally-scheduled discussion. :-)

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I didn't read the whole argument carefully, but I love what you said here. Context is everything.

That's okay, it was a little long-winded. I was in a slightly rambling mood. Glad you liked it, though.

This inflexibility in the current rules for what is acceptable is a problem for fandom

That's true enough, but the problem I have (because in the end, I'm a lawyer and not a philosopher) is that I don't think fandom exists separately of society, or the laws that govern society. To that extent, it does matter what sort of conduct society (and the law) proscribes, and what society (and the law) allows.

I don't see the law as being particularly inflexible. In fact, I would argue that the law (unlike LJ) is quite clear on what is and what is not acceptable.

Yes, it's true that it's hard to definitively know the age of a character depicted in fanart, but why not just get around it by providing a caption or something? "20 year old Harry shags 40 year old Professor Snape" and make it clear what the intent is?

Hi Roh,

the problem I have [...] is that I don't think fandom exists separately of society, or the laws that governs society.

Good points re: the law. I wouldn't say that the law doesn't apply to something just because it's fanfic. Clearly I'm a U.S. citizen and have to live within the laws of my country. And LJ/SA is an American corporation and so has to obey those laws, too. However, I kind of got the impression that a lot of the deletions weren't for purely legal reasons. That they were also concerned about having controversial stuff on their site when they went public. It seemed like they were making judgment calls based not just on the law but on what they approved of and what they didn't.

That said.... the law is not my area of expertise, and so I don't find it particularly interesting. Though it is important of course, and LJ/SA has to deal with what is legal (and so we have to deal with those subjects). But legality is one of those topics other people -- better versed in law than me! -- are already talking about. I do think that if our society is so inflexible that it say 18 is an adult, whether we're talking about Americans or humans or entirely different mythical creatures, that's a problem. It's not LiveJournal's problem because they're bound by the laws and can't change the whole world, but it is discouraging that people don't "get" the fact that children become adults at different ages in different cultures.

Oh, one other thing -- you're a lawyer? Somehow I didn't know that. Coolness! You learn something new every day.

I very much appreciate the generalities of your point and arguments. I think for me the most significant part is the lack of recognition of the difference between reality, fantasy and fiction. None of this is real and it is not intended for children.

You know, this whole thing tempts me to write a really NC17 story and smack on a disclaimer, "No actual children were harmed in the writing of this fic." But then I'm evil like that. *winks*

I'm glad my post resonated with you. It's been a long day so I can't promise it's all as polished as I'd like (and I am in a rambling mood tonight!), but the basic points are heartfelt and I stand by them.

The more I think about this, the more I think that what really needs to happen is that LJ needs to hire some good lawyers, ones who are well versed in the current state of international age of consent agreements and child pornography cases, consult with them, and then listen carefully to what they have to say before doing anything dramatic.

In this case, it appears to me that the status of the picture is probably "technically legal, but don't push it." But how easily things could be different! That picture is clearly a cartoon. But. . .

What if it weren't so clearly a cartoon? There have been a number of protracted cases involving child pornography made by either manipulating photographic images of real children, or digital images good enough to fool the eye for quite a while. Judges in different states have had to determine the legal status of these images based whether or not minors were harmed in the making of them or in their existence. This, as I mentioned in a comment to someone else, is why professional U.S. pornography sites, which are businesses that want to remain open and unprosecuted, include a distinctly unsexy disclaimer somewhere on the main page of the site stating that they are in compliance with U.S. law in that their models are eighteen or older. Fan artists don't have to do this, but it is something to consider.

Age of consent laws themselves are murky. Eighteen is a national baseline, but it's different in different states and in other countries. There are exceptions for minors having sex with each other, as opposed to with people over the age of consent. And then, just to add more thrills to lawyers' days, you have "Romeo and Juliet exceptions" for those cases when an eighteen- or nineteen-year old has a fifteen-year-old squeeze. 'Scuse me, heterosexual squeeze. In a 2001 case sure to delight slash fiction writers everywhere, the good state of Kansas found itself considering the necessity of (I am not kidding) a "Romeo and Mercutio provision"</i> for an eighteen-year-old boy who blew a fourteen-year-old boy. This, in a state that reworded its sodomy laws so as to make them apply more directly to homosexual relationships.

Let's all ponder that image for a while.

LJ has a lot to deal with when it comes to unsavory people. The difference between the letter of the law and the company's public image is only the beginning. I see their actions as a ham-fisted, but generally well-intentioned, CYA attempt. They pissed off the wrong people, and their PR efforts are backfiring comically, but I don't think they intended to do wrong to anyone. I find the fandom squealing over the nefariousness of the LJ team and the cries of oppression absurd.

I know we all hate lawyers. From William "First, let's kill all the lawyers" Shakespeare onwards, we love to hate them. What do you call 200 lawyers at the bottom of the ocean? A good start. But this is what they're there for. So that companies like LJ, who have to negotiate between changing laws and standards, can get a grip on what they're dealing with before they piss off their customer base.

And, honestly, people in that customer base can help out a little, too. I think that posting a picture like that uncut and unlocked is a phenomenally stupid thing to do, and I do think it's unreasonable to expect the LJ people and the Six Apart people to keep track of the age of consent minutiae in every single fandom represented across the entire site.

I don't see a clear winner in this case. I declare a mistrial, everyone to sit down, take their lumps, and move on to the next round.

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Heh -- you have some excellent philosophical points, here. Context absolutely matters -- without context, there is no meaning at all.

*uses the Legolas icon just for you*

Expect philosophical points from me. I really, really can't help myself. It's a compulsions!

(And somewhere, I hear the distant whisper of "Welcome to Academia" -- big surprise I feel the need to inflict my obsession on others.)

I really, really wasn't going to comment further on the situation with LJ banning accounts for explicit artwork, but I can't resist.

LOL, I know the feeling. It's like having a loose tooth that you Just.Can't.Stop wiggling with your tongue.

Anyway, you make some excellent points. Absolutely, context matters. Especially in art set in fictional worlds. But whether they're right or wrong, legally forced or not, I think LJ has made their stand clear. If you read those new policy guidelines, the only context that matters is current day, US/Californian law applied at its most stringest. Which at least tells us what's allowed and what isn't.

Now, the point where things derail once again is, if the context of a particular artwork's verse doesn't matter, LJ should also not use the 'verse's canon to determine whether or not a portrayed character is a minor -- which I believe they have done in Ponderosa121's case. Perhaps even following your canonical reasoning! Because, well, at best Harry's minor-or-not status in that drawing can be called "open to discussion". It's certainly not as clear cut as to warrant instant suspension for life of all the user's accounts.

The example you mentioned, about an 18-year old Legolas looking like seven? Yes, if they followed the reasoning that canon matters, it would be allowed. But they won't do that, I have no illusions about that. And despite canon says, I think they would be right. He looks like a seven-year old, after all! But it's this double standard that makes we end up in muddied waters once again. Or possibly quick sand. Context matters, but only when it gives them a reason to delete undesirable material? Because that's what it looks like they did and that policy isn't going to fly.

You know, the more I think about it, the more I wonder if these deletions aren't the case of someone somewhere jumping the gun because they, too, were squicked by the drawings and just happened to have a handy "Suspend account"-button within reach. But instead of saying, "Oops...", LJ has been scrambling for the past six days to come up with policy guidelines that would explain those deletions away. That, at least, would explain why they tried to use the "no artistic merit" excuse that they are backpedaling away from again...

*giggles at icon*

For the record, I like my elves fully of age and obviouswly so. As a matter of fact, if my attraction for characters like Celeborn, Bilbo, Denethor, and Theoden is any indication, I tend to go to the other extreme. But that's a topic for a different day!

whether they're right or wrong, legally forced or not, I think LJ has made their stand clear.

I know. I doubt I'll personally run afoul of them, so I can just be disapproving without fear of being personally affected. Which makes it easier to be philosophical rather than political, you know?

The bottom line is I'm not qualified to comment on the law, and I'd rather not be hard and cynical. So this is the only kind of post I can really make. If it shows that the laws have problems, that's okay with me. ;-)

The example you mentioned, about an 18-year old Legolas looking like seven? Yes, if they followed the reasoning that canon matters, it would be allowed. But they won't do that, I have no illusions about that.

Oh, I don't have any either! And really, in this case I think they should delete something that looks so much like a child. I guess I expect consistency across the board. But the fact that they're willing to use canon to get rid of things they don't like, and disregard it where it would mean keeping something like that, is philosophically disturbing.

You know, the more I think about it, the more I wonder if these deletions aren't the case of someone somewhere jumping the gun
You know, you're probably right. I know there have been cases as a fandom volunteer where another volunteer made a mistake and we had to deal with it. Sometimes we corrected the mistake, but where you could make cases for both perspectives, I know I was more likely to argue for what had already been done. It's human nature.

(Deleted comment)
t's nice to see a philosopher's arguments about the whole issue.

. . . she said, before waxing philosophical herself!

Fantastic arguments regarding historical treatment of adolescents and the differences in international concepts of child pornography. But, and I mean this in the nicest possible way, that and $1.75 will buy you a ride on the L train.

LJ is an American company, operating in the state of California in the present day, run by and for members of the species homo sapiens (however unsapiens we may be acting at the moment). They're a public company now, and have to put up at least the gross appearance of following the law in the place where they're based. Which means that, yes, the accounts of the international users of this service are subject to California obscenity laws. This is why a lot of shady firms operate out of the Bahamas, and why so many corporations who think they're likely to get sued are registered in the state of Delaware, whose laws are most favorable to sued corporations. The law of the place where LJ lives says that artwork will be judged by community standards, and they can't go around making exceptions just because the user doesn't live there. We're LJ's guests, and their home law applies.

Just for the record, if I were a German lawyer (perish the thought!), and if I were confronted by The Picture on the one hand, and "a depiction that degrades the involved persons to random objects of sexual lust, who have been stripped of their individuality and dignity as human beings without any meaningful social or personal context" on the other, I could go either way about whether or not it's pornography. I mean, one thing that's pretty clear to me is that The Picture exists for people to get their rocks off looking at the hot body of a teenager being boinked by his teacher. Well-intentioned, but, yeah, it's pornography.

Whether or not that's a bad thing in and of itself is a whole nother matter, and one that deserves a different look. But always remember. . . John Scopes lost the Monkey Trial.

And as for your (entirely rational) bias towards the enlightened attitudes of Germany over the screeching puritanism of America? You're right about the enlightenment/puritanism divide, and Europe has our puritanism to thank for its enlightenment. Remember just who it was who settled America to begin with. We drained off a large segment of the puritans from Europe so that Europe could become the enlightened place it is today.

Don't thank us. Just put up with our muddled exchange students who don't know what to do when confronted with Europe's sensibly low drinking ages.

(Deleted comment)
And then there's the opposite situation to Legolas: There was a character on ST:Voyager whose species only had a very short lifespan. She was clearly an adult, but only something like 9 chronologically.

Yeah, I had forgotten about Kes and the Ocampa. To make situations really interesting, IIRC there's also a race that ages backward so you have people who are obviously past the age of consent if they're about to die but who would look like young children.

I'm sure we could all come up with lots of examples like this for any fandom we're in. The point is, the age at which someone is no longer a child varies, and the laws need to take that into account. (If the laws already do, then LJ/SA needs to take that into account.)

Btw - I don't recognize your name, so thanks for stopping by. Out of curiosity, did you hear about my post somewhere?

I didn't read it all, but I just wanted to point out that the law in California [apparently] says 17 is a minor [?], and it's kinda about law here.

Although I do agree with you.

Hiya Kylie! That's a good point, I don't live in CA so I know its laws even less than I do my own state's. I think I read somewhere that child pornography was a federal crime even where it was also a state crime. Certainly it is on Law & Order! I recently saw an episode of SVU where the FBI were building a federal case against someone for producing child pornography. So even if CA's law is minor=under 17, I'd think the federal law would have an affect on what's legal everywhere in the US.

Btw - I don't recognize your name, so thanks for stopping by. Out of curiosity, did you hear about my post somewhere?

Tiny nitpick which adds nothing to the argument, as such: the age of consent in Sweden, my country of birth, is 15. I'd be very surprised to hear the other Scandinavian countries have lower AoCs.

Still significantly lower than the US for example, but enough that most people have hit puberty...

Hi Sodzilla,

I based that on an About.com site I found when I was quickly trying to research child pornography laws. The site is http://crime.about.com/od/childporn/a/customs_porn.htm, and its where I got that the AoC was thirteen in Scandinavia. Don't know their basis for that. This is the trouble with the internet - lots of information very quickly, but significantly less sources and footnoting of that info's references. ;-)

Thanks for clarifying that. I think I'll go change the thirteen in my post to 15, just to make this as correct as possible.

Btw - I don't recognize your name, so thanks for stopping by. Out of curiosity, did you hear about my post somewhere?

Here via metafandom.

While I realize you're talking about ideals here, one thing to understand is that pornography laws take no notice of matters such as ages of consent or even local ages of adulthood. In some U.S. states, people are legally adults at nineteen or older. In a fair number of states, the age of consent is below eighteen. Federal laws on pornography don't pay attention to this, because they're concerned with the federal standard for what constitutes adulthood, which is eighteen. (And yes, federal law applies to LiveJournal, because Internet communications are subject to federal law.)

So it gets back to the fact that the people who pass these laws have not taken into account that what is a minor in one place may not be a minor in another place. And I'm afraid that's pretty typical of the law. An eighteen-year-old can legally have sex with a sixteen-year-old in Britain (as long as he's not in a position of authority over the sixteen-year-old), but if he tried that in certain U.S. states, he could be arrested for statutory rape.

Hi duskpeterson,

Thanks for your comment; it really made me think.

You make a good point that something that is legal in one place not being legal elsewhere. Also, just because it’s legal to create something doesn’t make it legal to possess. Like, there are places where it’s legal to produce pornography with a sixteen-year-old actor, but that doesn’t make it legal to possess it in the U.S. Those are very true. However, since I’m dealing in ideas and not legal realities here, I started thinking about why child pornography is wrong—and wondered whether those reasons applied to a fantasy world where beings mature at younger or older ages. I came up with two off-hand.

Arg #1: Child pornography harms actual children who are forced to “act” in these videos.

--- But in the fanart being banned, there are no actual models being harmed.

Arg #2: Even where there are no actual children being harmed, child pornography somehow glamorizes pedophilia, making it more likely that pedophiles will harm actual children by molesting them.

--- This would be a problem if we were talking about people who might be mistaken for the kind of people pedophiles encounter. Fanart doesn’t involve some random child that might resemble a child a pedophile might actually encounter. Since we’re talking about fanart, people know that characters come of age at whatever age is prescribed by the canon, and so should conclude that a seventeen-year-old Harry is an adult, not a child. So I think there’s a real difference between a fanart portrayal of someone who is an adult by the world of the fandom, and pornography portraying someone who is under-age in America (even if he or she’s of-age outside America).

So it seems like the reason for the law doesn’t fit here. But I’m rambling a bit. (I do that. :-D) I do agree that it seems like the problem here is with the law rather than LJ. There’s enough blame to go around, and I don’t want to criticize LJ for something beyond their control.

Thanks for making me think, btw!


Oh, cool! Now I know why I'm getting so many people's comments.

I feel like such a celebrity...

(And thanks for the applause)

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Re: Hi, here from metafandom

That's a good question. I'd say that it depends a lot on whether the no age-of-consent and low marriage age are well known to members of the PotO fandom. I know that in the Middle Ages and antiquity people married a good bit younger than they do today, so a scene in which Romeo made love to Juliet would not seem like child pornography to me.

If you laid the groundwork by mentioning in a note what you just told me (or if it's well-known without you having to say it), I wouldn't think of it as child pornography.

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