Tuesday, January 06, 2015

"Taken as a whole" could matter to users, too

In the COPA litigation of a few years back, we were concerned over idea that a particular image or posting might be “harmful to minors” when viewed out of context.  Publishers wanted their material viewed as a whole, not from the viewpoint of the worst interpretation of individual pieces.  (Actually, the original COPA law in 1998 did have a provision that accepted material that “taken as a whole” did have legitimate value for minors.)
A similar concept has applied to obscenity, and to deciding what is pornography.  An image or video viewed by itself with no knowledge by the viewer of the intended context might appeal to prurient interest, whereas it would not if viewable only when accompanied at the same time by a lot of other explanatory materials.  Logically, it sounds plausible that such a concept could apply to a user (rather than content creator or publisher) for content that is viewed or found to be possessed on a hard drive or in the Cloud.  It would sound possible that it could apply to child pornography, although not with respect to known watermarked images.   I don’t know whether any such cases have occurred, but they could in the future.

It’s possible, for example, that saving a single photo or unlisted video out of the context of a large gallery could be viewed as a violation, when the content had been intended to be viewed only “as a whole”.  

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