February 13, 2006

• Xanga Terms of Use

  Mrs. Grundy, in the guise of some Xangans who consider themselves grownups and who act like vigilantes,
  is up in arms about violations of Xanga’s Terms of Use.  Anyone
  who registers for a blogsite here promises to abide by those
  terms.  Few people read them, I’ve been told.  I read them
  and took them seriously when I first came here.  I was a newbie on
  the web at the time, and had not yet been initiated to the practice of
  either checking the box without looking at the fine print or scrolling
  through the terms of service rapidly, picking out the occasional
  outstanding word for its comic effect.

  I felt severely limited by the constraints laid out in the Terms of
  Use.  When I started posting episodes of my memoirs, I mentioned
  my fear that a truthful telling of my story would get my site shut
  down.  Everyone who commented assured me that I was unlikely to be
  shut down for vulgarity or obscenity.  Some of them cited examples
  of well-known and generally loved Xangans who were routinely vulgar
  and/or obscene in their posts.  Some people included links to
  examples.  There were several veiled and ambiguous references to
  the elusive and mythical Bianca.  The consensus was that only the
  most blatant, egregious and extreme violations would receive any
  response from admin.

  This may or may not still be the reality around here.  As I see
  it, whether Xanga admin responds to the Grundian pleas to shut down
  “pornographic” sites depends on several factors, regarding none of
  which I have enough data to be able to predict admin’s response. 
  I don’t, for example, know whether the Xanga Team, which consists
  largely of young men, will define “pornography” by the same criteria as
  Mrs. Grundy does.  Nor do I know whether Xanga has adequate
  personnel to police its multitude of sites to Mrs. Grundy’s
  satisfaction in a timely manner. 

  These unknown factors do not even address other factors such as the
  ease with which the owner of a shut-down site can register for a new one
  under a different name and email address, or the slippery, ambiguous
  and highly open-to-interpretation nature of the Terms themselves. 
  Having read and reread the terms several times, I am inclined to
  dismiss much of the whole mess as bullshit
  – ooops! That was vulgar,
  wasn’t it?  “Vulgar” is not allowed here. What I meant was that
  the Terms of Use strike me as being partially PR pap and the rest
  hypocritical CYA or legal boilerplate.

  Here, let me show you what I mean:

  Xanga’s Terms of Use is designed primarily to protect our members.  [I don't think so.  It is, as it must be, designed primarily to protect the site's owner(s)]  To help maintain a safe and fun environment at Xanga, you must agree not to use Xanga’s products or services to:

      * upload, post, email or otherwise transmit any Content that is unlawful,
  harmful, threatening, abusive, harassing, tortious, defamatory, vulgar,
  obscene, libelous, invasive of another’s privacy, hateful, or racially,
  ethnically or otherwise objectionable;
  
      * harm minors in any way;  [This
  is broad enough to cover just about any possible legal liability, and
  too broad to make sense as a useful guideline in the real world. 
  Some of those words are so broadly open to interpretation as to be
  meaningless, especially the last two.]
      * impersonate any person or entity, including, but
  not limited to, a Xanga official, or falsely state or otherwise
  misrepresent your affiliation with a person or entity;
      * forge headers or otherwise manipulate identifiers
  in order to disguise the origin of any Content transmitted through the
  Service;
      * upload, post, email or otherwise transmit any Content
  that you do not have a right to transmit under any law or under
  contractual or fiduciary relationships (such as inside information,
  proprietary and confidential information learned or disclosed as part
  of employment relationships or under nondisclosure agreements);
  
      * upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
  
      * upload, post,
  email or otherwise transmit any unsolicited or unauthorized
  advertising, promotional materials, “junk mail,” “spam,” “chain
  letters,” “pyramid schemes,” or any other form of solicitation, except
  in those areas (such as shopping rooms) that are designated for such
  purpose;
  
      * upload, post,
  email or otherwise transmit any material that contains software viruses
  or any other computer code, files or programs designed to interrupt,
  destroy or limit the functionality of any computer software or hardware
  or telecommunications equipment;
  
      * “stalk” or otherwise harass another; or
  
      * collect or store personal data about other users. [This covers those liabilities not covered above.]

  You acknowledge that Xanga does not pre-screen Content, but that Xanga and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that violates this Agreement or is otherwise objectionable.  [In other words, the Xanga Gods rule.]
  
  
  You understand that all Content
  posted to the Xanga system or otherwise transmitted via the Service is
  the sole responsiblity of the individual who originally posted the
  Content. You agree that Xanga will not be liable, under any
  circumstances and in any way, for any errors or omissions, loss or
  damage of any kind incurred as a result of the use of any Content
  posted or otherwise transmitted via the Service. 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.  [the ultimate CYA]

  It
  was pointed out to me that the members of the vigilante blogring that
  was formed to address the “pornograpy problem” have been conducting
  their business in protected posts.  My informant likened this
  activity to that of various secret police organizations.  Their
  tactics are similar, yes, but their status is unofficial, which is why
  I term them vigilantes.  Someone else likened these people to the
  KKK, perhaps the best-known of all the vigilantist American secret
  societies.  I do not doubt that these people would, if they had
  the power to do so, shut down the sites they find offensive. 
  Lacking that power, they content themselves with informing to an
  administration that may or may not appreciate their efforts or share
  their views.

  One of the most debatable aspects of this hoohaw is what these vigilantes mean when they say, “pornography”.  Dictionary definitions refer to the intent of the material being published, rather than to its content,
  making it quite difficult to pin down.  Pornography is a
  layperson’s word, anyway, without legal meaning.   The laws
  governing “pornography” deal with the concept of obscenity.   In the entries I read through the links posted under the “censorship”
  challenge, I saw references to nudity and to depictions of
  genitalia.  Nobody whose posts I read referred directly to any
  depictions of overt sexual acts.  The sites so offensive to them,
  they said, were ones where the site’s owners were displaying their own
  genitalia.

  Some of the participants in this crusade are trumpeting the necessity
  of protecting “children” from themselves.  This troubles me as much as
  I am troubled by the general lack of civil rights among the young. 
  Although I know that as a member of this culture I am stuck with it, I
  do not agree with the implication of the term, “minor child,” as
  generally defined.  De jure, yes, adolescents who are sexually mature
  and often sexually active are still “minor children” after they have
  become de facto adults.  It is hard for me to think of people as
  children when they are obviously sexually mature and are quite
  blatantly displaying their mature bodies and seeking mates.

  Here is what the U.S. Supreme Court ruled on “obscenity.”

  In the 1973 case Miller v. California,
  the U.S. Supreme Court reaffirmed an earlier ruling that obscenity was
  not protected speech under the First Amendment and could therefore be
  prohibited. Further, the Court laid down a standard by which all future
  obscenity cases would be judged. Representing the majority opinion,
  Chief Justice Warren Burger wrote:

      The basic guidelines for the trier of fact must be:

            (a) whether “the
  average person, applying contemporary community standards” would find
  the work, taken as a whole, appeals to the prurient interest…,
            (b) whether the
  work depicts or describes, in a patently offensive way, sexual conduct
  specifically defined by the applicable state law, and
            (c) whether the
  work, taken as a whole, lacks serious literary, artistic, political, or
  scientific value.

  The ruling further instructed that the standard to be used was that of
  the community in which the case was being tried and that no national
  standard was needed.

  Guidelines (a) and (b) would, for me and many other Americans, both
  Xangans and non-Xangans, exempt any and all simple depictions of nude
  anatomy from classification as “obscenity.”  Unlike Mrs. Grundy, I
  see nothing pornographic or obscene in a plain picture of
  genitalia.  Now all that remains to be determined is whether the
  “community standards” are those of the Xangan community or its
  administration.  If we were allowed a democratic vote on the
  issue, I suspect that Mrs. Grundy would be shut down.

  The aspect of this matter that I find most troubling is the fear that
  is so obviously motivating Mrs. Grundy, and the hostile reaction
  stirred up among the young people she is trying to suppress. 
  Having made the conscious
  choice to turn my life over to Love and to try in all things to be
  motivated by Love rather than fear, I cannot even imagine my
  participating
  in this ill-conceived crusade against young persons whose minds and
  souls have not been so programmed with fear of biology and loathing for
  the naked human form.  Nor can I participate in the angry uproar
  of
  retaliation.  I can, and do, sympathize with the oppressed and
  pity the
  oppressors for the fear that oppresses them.

  

  • 10:24 pm
  • 14 Comments