Friday, September 12, 2008

Senator Lieberman urges YouTube to tighten standards for acceptable use; his concerns are specific, but what about COPA, and "implicit content"?

This morning (Friday Sept. 12, 2008) the Business Section D1 of The Washington Post reports a story by Peter Whoriskey, to the effect that YouTube will removed more “inciting” videos from its site and tightening its terms of service regarding certain kinds of enticing or hateful speech. YouTube has taken the action partly because of recent criticism by Senator Joe Lieberman (CT, now effectively “Independent”), who was specifically concerned about videos that appeared to be connected to Al Qaeda or various tribal or sectarian groups in Iraq and possibly Pakistan or Afghanistan, endangering American troops. The link for the story is here.

The print version of the paper includes a copy of YouTube’s terms of service. The online version did not. However, generally publishing services (including “free” services from Blogger or Wordpress and paid or subscribed hosting services from companies like Yahoo!, NetworkSolutions and Verio, as well as AOL) have similar rules in their terms of service.

One problem is that any publishing service, if it tightens acceptable use policies out of concern over one particular group (here the group could be troops overseas) it must enforce them in a uniform manner with respect to all issues. This is similar to the well known problem that airport screeners cannot profile individual travelers out of appearance and have to enforce the same rules for everyone.

Concepts like “enticement” or “hate speech” are particularly subject to interpretation. Actually, United States Code has some specific statutory federal laws regarding “coercion and enticement” of minors. The problem is that both concepts tend to live “in the eye of the beholder” and tend to relate to whom the subjects are, who the speakers are, the relationship between the speaker and subjects, and the manner of delivery of the speech. Asymmetric speech such as YouTube videos or blog entries may be more provocative than similar or identical speech that appears embedded in a commercial format, such as major motion pictures. (This reverses or contradicts a commonly held perception that the First Amendment protects individual non-commercial speech more thoroughly than corporate commercial speech through establishment channels. The opposite is sometimes true, because a lot of First Amendment protection involves collection action. It's also true that YouTube is a private enterprise and can theoretically restrict speech as it pleases, but in practice YouTube is trying to comply with what it believes the law requires.) A good example of such a situation would be a particularly “offensive” dialogue that occurs half way through the recent Dreamworks hit film directed by Ben Stiller, “Tropic Thunder.” Had that scene been posted separately on YouTube (and had it been an original scene, assuming “Tropic Thunder” did not even exist for copyright problems) it certainly would have violated YouTube’s “terms of service.” (As we know, there were demonstrations against the film and threatened boycotts, but Dreamworks did not pull it. I suspect the sequence would have violated the code for broadcast television, however.)

I discussed this problem in my blog posting here Wednesday, Sept 10. People often want to go into religious or “existential” moral “meta” arguments about a problem (say sexual orientation), but others may feel that the only (“disguised”) point of the speech is to “target” them. Conservatives often make this complaint, particularly in relation to campus speech codes. (John Stossel has pointed this out on his “give me a break” series.) Likewise, a video of a violent or disturbing event, objectively legal and comparable to a sequence that would occur in a Hollywood film, posted for “notoriety” but not for compensation, might be perceived as “enticing” because of external circumstances: the speaker has no believable motive other than to stir unrest in others. Maybe common sense (as with teen “fight club” videos – Hollywood again, with a famous film of that name!) applies, but it could be very hard to draw a line. I ran into a problem with a screenplay script (not a video and not a blog) on my own domain when I was substitute teaching because it was thought to depict a character like me as vulnerable to manipulation by students into illegal activities. I say, I posted it to demonstrate a problem in a work of fiction. Others say, if I am an “authority figure or role model” I have no business suggesting that my own credibility in that responsibility could be compromised. What if I had filmed the screenplay with actors (with no explicit scenes) and YouTube video? Theoretically, a particular person could be barred from asymmetric speech altogether because any controversial speech by the person could be construed as deprecatory and therefore potentially enticing.

With the COPA law taken and applied literally, it could not have created a COPA violation, even if COPA had been upheld. But would it have violated the “terms of service” as written, given this interpretation?

That also brings to mind still another question. If the government appeals the latest COPA opinion and the Supreme Court somehow upholds COPA, will YouTube and others have to incorporate COPA into their “terms of service”?

As I note, the article did not discuss blogs specifically, but blog entries often have embedded videos (from YouTube or otherwise) or still images. On my blogs, many of my images are just decoration and unrelated to the post; many others obviously relate. I do try to avoid picking an image that, in context, would cause misinterpretation of a particular post.

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