Monday, March 24, 2008

COPA and implicit content: social networking sites, even P2P, could answer "community standards" questions with affinity groups

In the first go-around before the Supreme Court with COPA in 2002, the Court, recall, ruled that the statute couldn’t be invalidated just on the basis of a community standards argument alone. In general, with troublesome issues, the Court held, it’s important, even with the Internet, to maintain the possibility of using the community standards concept (the Miller and Hamling tests, etc.). It’s been OK to use it with obscenity, so one cannot dismiss the concept out of hand. Justice Breyer had suggested the possibility of a “national community standard” for what “harmful to minors” might mean.

Eventually, as we know, COPA was returned to the district court in 2004, and the District Court in Philadelphia struck it down in March 2007, about a year ago today (see this blog), on other grounds, much of them having to do with the ambiguity of the HTM concepts and the impracticality of the “adult id” affirmative defense. It is now under appeal by the DOJ and we may learn something about how the oral arguments went soon.

But I wanted to note that the emergence of social networking sites, with the idea of affinity groups (a concept particularly promoted by Facebook) at least provides some practical implementation of the notion of “community standards” within online communities.

Consider the issue of the “screenplay” that got me in trouble (as I explain in the July 27 2007 entry on my main "BillBoushka" blog [links from profile]). I had posted it in the "scrplys" directory of my very public website in the early spring of 2005, just about the time social networking sites were starting to be noticed. Later, as I was still substitute teaching, the concern surfaced that, although the screenplay was fiction, the main character resembled me and that, when found by students at home, it might be viewed as “enticing.” Although the material probably did not fit the strict definition of HTM in COPA, the ACLU attorneys included the item in the materials submitted to the Court in the 2006 COPA trial.

The emergence of social networking sites and affinity groups raises the opportunity to circulate risqué materials in a closed group. Some cities have in-person screenwriting groups and even table readings, but the possibility exists for carrying out such activities online (even the table readings) with specialized web applications. The question arises, then, why wouldn’t such technology (which could either be web-based or perhaps P2P) provide an adequate opportunity to circulate such materials in places where they will get the constructive attention (leading to possible sale) that the writer really needs? One example would be the three Project Greenlight screenwriting contests held (by Miramax Pictures and Dimension Films) online a few years ago.

The issue here is not so much HTM as “implicit content” – imputing the risk that material will be misinterpreted (as to legal intention) when found by search engines out of context.

Facebook does have a group called “Hollywood Interrupted” which I have just started to explore. You have to join Facebook first to sign in, but anyone can join now and start by affinity just with the city of residence. The visitor may want to check “Fun Joey’s” blog entry on this.

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