While the latest LJ kerfluffle is going in full-swing, let me make clear my stance here, especially since there seems to me to be a certain amount of misinterpreting what I'm saying.
Personally, I think the artists in question who got perma-banned from LJ were, to put it kindly, stupid.
Yeah. I said it. They were stupid.
For creating their art (even though...yeah...not to my taste at all)? No.
For posting it on an unlocked (at the time) pornish_pixes? Questionable. Depends on whether such pieces were acceptable in the past. Depends on whether the artists warned the images were not work-safe. Depends on whether they've been dinged before by 6A/LJ for content. God knows, it still wasn't smart, but whether their posting the work in question was foolish or stupid depends on a lot of factors.
Here's where the stupid comes in:
Given the ruckus that has been continually kicked up on LJ since Memorial Day, and given the fact that there have been plenty of people (inside fandom and outside fandom) complaining that LJ/6A has not been clear about what they are and are not willing to host even when directly asked by their customers (that would be us, by the way), posting the actual artwork in an unlocked community where there was even a question or doubt that could enter into the minds of Our Corporate Overlords at 6A/LJ was stupid.
At the very least, wait until it became clear what 6A/LJ's "standards" are and how those standards are going to be enforced. Or at least host the potentially objectionable art on another service and provide a link with warning that the images weren't worksafe. That would've been the smart way to go about it.
The fact is (and this is a hard fact) "Freedom of Speech" does not come into play here. Such provisions in those countries that have them are only meant to stop the government from infringing on the rights of its citizens to speak out. Even then, it can be abridged within reason (the "falsely yelling fire in a crowded theater" test) — although in the U.S. we have increasingly seen it abridged outside of reason, but that's an argument for another day.
6A/LJ is, like it or not, private property. Our Corporate Overlords (be they 6A/LJ or some other blogging/journaling service) have the right to decide what they will and will not host on their servers. They also have the right to refuse service to potential customers they don't want. They also have the right to decide how their existing customers may and may not use the service they provide. Furthermore, they have to do it in accordance with the rules and regulations and laws not just in the U.S., but also within the state of California (where the servers are located). I guaran-fucking-tee you that those rules and regulations and laws are a hell of a lot more restrictive than any First Amendment (and, as it turns out, a few European and Asian countries).
Here's my actual problem with 6A/LJ:
Bad customer service.
No, seriously. There it is.
All of my other side problems pretty much stem from that one sentence, including:
- Suddenly permanently suspending journals without warning to the owners and without a more thorough investigation that complaints from outside parties (i.e., vigilante groups like Perverted Justice and Warriors for Innocence) during the Great LJ Strikeout of 2007 over Memorial Day weekend were actually legit
- Speaking to the press about the Great LJ Strikeout of 2007 before deigning to make a single post in any of LJ's many, many corporate communications communities like LJ News or LJ Biz explaining the whys and hows of the debacle to its customer base
- Releasing on the new ToS on the eve of the Permanent Account Sale where they were asking $150 from customers — glossing over the fact that people who paid could get their journals yanked at any time without recourse or a refund should LJ/6A decide they don't want to host that journal any more
- Back-pedaling in the comments of the post where the new ToS was announced when people pushed for clarification on certain items, up to and including:
— What was the "additional content" outside of the "Miller Test" that 6A/LJ was not willing to host?
— What, exactly, were LJ/6A's standards for objectionable content? (People were reduced to asking for examples.)
— Would LJ suspend/delete/ban someone without notice, or would journal owners at least get some warning?
— In what way could an LJ/6A customer go about appealing a decision should a journal get suspended or deleted?
— Can people with suspended or deleted journals get a refund on their unused time (in the case of paying customers)? How about people with permanent accounts?
- None of these questions listed above, by the way, received a direct or truthful answer, despite repeated requests for clarification. The answers were invariably, "Well, the ToS says this, but we really mean this." Or, "We don't interpret the ToS this way." Or we got reassurances that our tin hats were wound too tight. Or...or...or... No one (well, no one reasonable) was demanding that LJ/6A not have a ToS. Not too many people were even asking for change. They wanted clarification because no one is a mind-reader and no one really wants to step over some arbitrary invisible line. Clear rules and clear guidelines, I don't think, are too much to ask for. Some people thought things were clarified. Some people (me included) thought the waters got a hell of a lot more muddied by the answers.
My perception that the artists in question acted stupidly, however, is nothing compared to what I currently think about LJ/6A.
Both artists (to my knowledge) never received any previous warning about objectionable content. As far as I'm aware, neither one of them even got targeted during the Great LJ Strikeout of 2007. They never crossed LJ Abuse's radar, as far as I know. So it seems to me that their punishment (remember, both artists were banned for life without prior warning from getting a new LJ account) was arbitrary and heavy-handed.
A reasonable action (assuming LJ/6A wanted the images off the servers right away), would be to suspend the accounts and email the artists asking them to remove the objectionable content. If the artists agreed to it, unsuspend the journals and give the artists X-number of hours to remove the objectionable content or (at the very least) have LJ Abuse delete the objectionable content before restoring the journals.
Even with the unreasonable action LJ/6A took, at the very least give the artists some way to appeal LJ/6A's decision, especially if they didn't have a history of problems with LJ Abuse.
Or, failing that, refund the money those artists paid for journals (if the journals were paid accounts) and prorate that refund to take into account the time the artists had used vs. the time they were banned from LJ. To my knowledge, the artists were not offered any sort of refund for their unused time.
Deleting a journal without at least some kind of warning or for a way to let the journal owner retrieve the content or without a right of appeal or without a refund (in the case of paid journals) isn't just unfair, but it's sucky customer service. People pay for the service in one form or another and they do have a right to the content they've generated. What LJ/6A did with respect to the two artists is a form of stealing.
That's right. Stealing. From your customer base.
How smart is that? Let's just say it's beyond stupid verging on single-digit IQ points. Because I guaran-fucking-tee you (again) that quite a few people looked at the case of the two artists and thought, "Shit. That could be me."
The minute that thought crops up, regardless of whether you yourself generate content that's questionable (and everyone has generated, in one form or another, at least some content that could get them in hot water on either a legal or professional or personal level), it ceases to really matter. Hell, it doesn't even really matter that the artists generated content that got them banned for life without warning from LJ or generated content that you personally found objectionable or even that you thought they were stupid for pushing it while the lines were so blurred.
The fact is, it could happen to you because now LJ/6A has shown that they can (and will) delete your journal (your content) without giving you any warning or any recourse at all. And they won't refund your money, either, when they do.
Here's the thing: you get a journal, you're entering into a contract that obliges both parties (Corporate Overlord and Customer) to abide by a certain set of rules. Those rules should be spelled out clearly so both parties can abide by them and to ensure that an even hand is applied in enforcing those rules. LJ/6A's assurances (especially in light of their recent actions) coupled with the new ToS had too many loopholes, too many problems, and too much arbitrary factors built-in. It was enough to make even someone like me take a step back and wonder what was out of bounds and what wasn't.
Thus far, LJ/6A has remained uncommunicative and unresponsive to the concerns of its customers. The statements made by LJ/6A employees on how the ToS would be enforced has been confusing (at best) and contradictory (at worst). Its arbitrary actions (up to and including removal of the distinctive strikeout from the code and replacing it with mere bolding for suspended and deleted journal accounts) to keep hidden how they are applying the ToS and who they were applying it to is maddening, especially if you prefer to keep things above-board.
People seem to forget: we are LJ/6A's customers and we are its content providers. As customers, some of us provide additional income (similar to someone subscribing to magazine or newspaper) by either buying a subscription for a set amount of time or hosting the ads. As content providers, we attract eyeballs to the site and we also give advertisers key demographic information so they can more accurately serve their ads to a potentially receptive audience.
Now, you would think, that it would be in LJ/6A's interests to remember the above points. Without an established user base or a good population of active journals, they have nothing to sell to advertisers and their ability to attract new customers is hampered. You would think that any business plan would take that into account (unless 6A wants to kill LJ...but I honestly don't think they do).
However, LJ/6A continues to treat us (the customers) with contempt, or like we were drama queens with entitlement issues. To be fair, some people are acting like drama queens with entitlement issues, but it's not good customer service for LJ/6A to lump everyone into the same drama queen category. It's really bad customer service to act like that's the case. It's horrendous customer service to not respond to questions and repeated requests for clarification or to respond with vague statements that could be interpreted any number of ways.
And then to arbitrarily act (regardless of your thoughts on the artists in question or the pieces that got them banned from LJ) without warning to even the journal holders themselves...well, that's quite a bit beyond bad customer service, don't you think?
It practically guarantees that at least a percentage of people who didn't think LJ/6A was entirely in the wrong with respect to its actions against to the two artists are going to get very pissed off with the way LJ/6A are have handled the mess from the get-go.
Pissed-off customers have a nasty habit of biting the corporate hand.
And then they take their business elsewhere.