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Terms and Conditions Modification - further explanations

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Apr. 10th, 2005 | 05:12 pm
posted by: tienriu in skyehawke

Apologies for not being around to answer these questions - I'm afraid being on the other side of the date line makes sure that almost all of the administrators either reply within a few seconds of a post OR don't reply till twelve hours later. (It doesn't help that I slept in till midday either)

Thanks to Copperbadge by the way who seems to have picked up all the flack on this and been answering questions right, left and center (and occasionally upside down too). You can find his post on this here: http://www.livejournal.com/users/copperbadge/696788.html.

Firstly, just to allay one of the fears that seems to be coming out:

There are three members in the illiterati (http://forums.skyehawke.com/index.php?f=59). One of them, as many of you already know, is Copperbadge. I am unsure at the moment if I have the permission of the two remaining members of the illiterati to put up their names. As I'm sure at least half of you would understand, the Illiterati would be the first port of call for trolls, flamers and dissastisfied people - the last thing anybody would want is to have all that trolling, flaming and hate-mail be aimed at their inbox. So bear with us as we double-check and make sure that they've given permission for their names to be listed and give them time to set aside a special inbox so they can go on with the rest of their lives rather than having to dig through the flames, the trolls and anything else.  Also, please note that the reason the remaining two members of the Illiterati isn't listed might not be due to lack of permission but my own lack of attention (in other words, they might have given permission but I've forgotten - it has been a very busy two months not only hashing this out but keeping the site up). If the two remaining members are unhappy with listing their emails they will be given skyehawke emails so that they can be contacted. The fact that they MIGHT chose to not give their working emails is more in line with NOT getting flamed to the point that they can no longer use their email. However, please, allow me to check before I provide emails and names - I should have a post regarding this within a day or so.

Edit to add (about ten seconds after I posted this) Idiotparade is the second member of the Illiterati and has also put up a post here: http://www.livejournal.com/users/idiotparade/216672.html (as she's put up a post on this, I'm confirming my assumption that she has given permission for her name to be listed).


Also - before we go any further: the Illiterati are volunteers.  Their job is, literally:

Extension of Power
The rights and responsibilities granted to the Illiterati do not extend, as a group (although members can and/or may hold positions with similar or dissimilar responsibilities and rights elsewhere within the skyehawke dot com family of sites - specifically skyehawke :: forums) beyond the ability to determine if ToS and CoC abuse has occurred in relation to the archiving of (non)fiction by an account holder at skyehawke :: archives. The determination of the Illiterati will result in removal - either voluntarily or enforced - by the Administration Team or the author of the item of (non)fiction.

(The Illiterati - their rights and responsibilities)


The chosing process for the Illiterati can be found at the link above (but here it is again in case you missed it: http://forums.skyehawke.com/index.php?f=59).

Now, for those of you who haven't logged in yet or who are just confused, I hope this will help:

Item '3. Content' was changed in the "Terms and Conditions" (or "Terms of Usage") to the following:

3. CONTENT
Contributions to skyehawke dot com :: archives might contain adult content. Stories that contain mature content require a statement that you are of age to legally read the material if an author appropriately rates their piece. It is your obligation to leave areas that are unpoliced, misrated or allow adult content. if you are not of the age of consent in your area. skyehawke dot com :: archives is not responsible for the misrating of adult oriented content but will remove content if the misrating is brought to the attention of skyehawke dot com :: administration.

The following restrictions apply to any fiction and/or non-fiction contributed to skyehawke dot com :: archives:
i. fiction and/or non-fiction directly copied (ie. plagiarised) without permission.
ii. fiction and/or non-fiction that falls into the following categories:
    - inflammatory
    - prejudiced
    - bigoted
    - exploitative


Especially (though not restricted to) where it is or can be justly and reasonably seen to intentionally sexually titillate (while having no ulterior motive beyond sexual titillation) in situations of sexual violence or indecency as defined by this Terms & Conditions (see below).

The following definitions are used:

    Sex: an intimate act with intent for sexual release (whether mental, physical or emotional)
    Violence: harm is intended by sentient being involved in sexual act
    Indecent: wherein at least one partner participating in sexual act is underage or otherwise considered being unable to give informed consent.


Such items will be removed on detection and is grounds for deletion/removal of account.


This was the original section in the "Terms and Conditions" ("Terms of Usage") that was modified:

3. CONTENT
Contributions to skyehawke dot com :: archives might contain adult content. Stories that contain mature content require a statement that you are of age to legally read the material if an author appropriately rates their piece. It is your obligation to leave areas that are unpoliced, misrated or allow adult content. if you are not of the age of consent in your area. skyehawke dot com :: archives is not responsible for the misrating of adult oriented content but will remove content if the misrating is brought to the attention of skyehawke dot com :: administration.

The following restrictions apply to any fiction and/or non-fiction contributed to skyehawke dot com :: archives:
i. fiction and/or non-fiction directly copied (ie. plagiarised) without permission.
ii. fiction and/or non-fiction that falls into the following categories:
    - inflamatory
    - bigoted
    - prejudiced


Such items will be removed on detection and is grounds for deletion/removal of account.


This is the plain English explanation that we listed on the site for our users on the re-acknowledgement of the changes in our "Terms and Conditions":

This change is mostly an addition to the list of fiction that is not allowed in the archive (in much the same way that submitted fiction with a specific slant are considered beyond reproach and refused publication in the 'real world').

In plain English: Fiction and non-fiction that is inflammatory, prejudiced, bigoted and/or exploitative is not allowed. This is especially true for fiction or non-fiction which is or can be reasonably assumed to be (without much thought on the part of readers) written purely to turn somebody on with the description of violent, indecent acts involving abuse and/or paedophilia.

Our intent is not to remove the online-fiction equivalent of Vladimir Nabokov's "Lolita" and similar fiction. All complaints regarding Terms & Conditions abuse - specifically, abuse related to content - will be handled on a case by case basis by the Illiterati. The Illiterati are a group of fandom volunteers chosen specifically to determine when Terms & Conditions abuse has occurred. They are held to the values depicted in the Code of Conduct. For a full description of the process Terms & Conditions abuse complaints go through as well as the powers and responsibilities of the Illiterati, please refer to the Illiterati forum: here.



All of the above was listed on the page that all of our account users were asked to acknowledge the next time they logged on after the 9th of April, 2005 (Australian). I made the mistake of not actually posting all of the above (the modification, the original content and the plain English explanation) in the forums forgetting that the link to the full "Terms and Conditions" wouldn't be as easy to understand as the modification.

What do we actually mean by all of this? (I know, the plain English section probably doesn't say it as clearly as I'd like - I really apologise, by the time I wrote that section I'd spent two weeks drowning in jargon trying to figure out a way to say what I needed to say)

Basically:
- if you have plot, no matter what you're writing, you're in the free and clear. This has nothing to do with you.
- if you write porn between two consenting adults, you're free and clear, this has nothing to do with you.
- if you write non-consenting porn between adults , this will only apply to you if it can be seen as a rape fantasy. What makes up a rape fantasy? This is the job of the Illiterati to figure out. BUT these are the guidelines that they'll follow:
- the entire thing is about rape and how turned on everybody is by the fact that it's rape
- it encourages you to go out there and rape somebody because it's so fun and healthy

NOTE: stories that intend to disturb you BECAUSE it's a rape are free and clear. How do we tell the difference between stories intending to disturb you because it's a rape and stories that are out to turn you on because it's a rape? That's the job of the Illiterati.

- if you write a sex scene in your story wherein an adult has non-consenting sex with an underage minor and cover the results of that non-consenting sex (i.e. PLOT) you're in the free and clear.
- if you write a sex scene wherein a minor has sex with an adult and the adult does not consent and the story explores all the connotations of this (in other words, there is plot), you're in the free and clear.
- if you write a story and that entire plot revolves around a minor trying to have sex with an adult that's the job of the Illiterati to figure out.

- if you write porn between two underage children you're in the free and clear.
- if you write porn between two underage children with the intent to turn adults on with ohgodchildrenhavingsex than you're in the gray area and it's up to the Illiterati.

Please note, context will be taken into consideration. For instance, if your character (as in, for example, the "Yami No Matsuei" or the "Stargate SG-1" fandoms) happens to be underage in body BUT much older mentally due to being a clone of an older person/having died at 16 and spent the past 100 years being a Death God) and has sex with an adult than you're also in the free and clear because the character is an adult despite being in an underage body.  In that context, note the following:
- if you write a story where the adult has sex with a character who is underage in body but mentally an adult because said adult likes to have sex with children than you're in a gray area and it's up to the Illiterati.


For those of you who are really worried about this:

skyehawke dot com is an Australian site, in Australia the age of consent is 16 years old BUT it's considered illegal if you're older than 18 and your partner is younger than 18 and more than two years younger than you. HOWEVER, Australia's age of consent really has nothing to do with anything unless you're writing in an Australian fandom. Look - if you're writing a story in [country x] where the legal age of consent is 18 and you have a newly graduated student having sex with their teacher and somebody quibbles because in [country y] where they read the story and where you're actually a citizen, it's illegal for anybody to have sex till their 21 than you can rightly point out that in [country x] it is legal. If that is the ONLY reason why the story was brought up on a complaint than whilst the story will still go before the Illiterati (because the administration can't NOT pass on complaints to the Illiterati - we do not filter complaints, that would be besides the point of an open, transparent system dealing with these complaints) it will be tossed back.



When will a story be removed? When the Illiterati comes to a decision that it constitutes a Terms and Conditions abuse. When will the Illiterati have to come to a decision? When a complaint is sent about the story. The full process is outlined here: http://forums.skyehawke.com/viewtopic.php?t=751
The author is advised to step up and defend their work (I'd have liked to make it mandatory but that's impossible to enforce) and they have three weeks to do so.
This process with the Illiterati is what is meant by the phrase: "Such items will be removed on detection and is grounds for deletion/removal of account."

In summary:
This isn't an automatic ban on chan (underage or minor stories). 
This isn't an automatic ban on non-consentual fiction. 
This isn't an automatic ban on anything. 
NOBODY is going to pre-read your story before you post it to make sure it's 'okay' to put up.
NOBODY is going to run through the archive and pre-emptively delete any stories.  (And if they do, you should complain because they shouldn't).

If you are unsure about your story, you have several choices:
- wait till somebody complains and see what the Illiterati will do
- complain about yourself so the Illiterati have to make a decision
- talk to one of the Illiterati (though note they might not be happy with several thousand emails asking them to judge their stories when there's no actual need).
- wait till the Illiterati has to judge a complaint and use that as a case study on whether or not your story has the same situation.

NOTHING (I can't emphasise this enough) will be done UNLESS somebody complains - and by 'complain' I mean, uses that link at the top of each story that says 'Report Abuse' rather than merely leaving a bad email or writing something on somebody else's site, or writing about it in livejournal etc etc etc.

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Comments {3}

Amorette

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from: amorettea
date: Apr. 10th, 2005 09:29 pm (UTC)
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As long as I can write smut between consenting adults all having a whee of a time, I'm happy. As long as I can read smut, I'm happy. I was a bit worried with the change because it did initially sound as if fan fiction net were about to descend and we could only have happy happy kissy kissy fade to black romance crap and I much prefer graphic stuff. Glad to see my porn is safe for now.

Amorette

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from: anonymous
date: Apr. 25th, 2005 08:00 pm (UTC)
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What if you write a story in which an underage character is in an older body (presumably through magic of some sort), having sex with an of-age character? I'm thinking of for example the movie Big and how a plot-offshoot of that could be applied to the HPverse, or of the manga Marchen Prince (http://www.sweet-lunacy.net/shoujo_pages/merupuri.html) (in which the romantic lead is a 7-year-old in a 17-year-old body--a very grey area?).

Of course then you get into the grey grey area of "What if a Big-ified underage character has sex with another underage character who's still underage?" Oww, my head hurts.

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from: tienriu
date: Apr. 26th, 2005 10:43 am (UTC)
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According to Australian law, the character is considered underage not just by physical age but by what age they are depicted to be. However, as expected, this sub-segment of the law sounds like and has only ever been applied to tv shows/movies/advertisements/pictures, not text/publications. I think it was meant to trap movies/shows/pictures that had 18+ actors dressing up as pre-pubescents having sex with adults and then saying that the actors were all legal adults.

I - am not completely sure how to apply the law on this topic. I think the best answer I can give is that the Illiterati (especially Nquisitor who has a legal background) will have to figure it out with you were you to post it at skyehawke :: archives and the story was complained about for being child pornography.

My personal interpration says that "seems" would imply that if the person was mentally 7 years old and in the body of a 17 year old*, than they would still count as underage. However, what then of the inverse: that if (as in the Stargate fandom) the character is 50+ and in the body of a 15 year old.
A literal interpration of the law would see both judged as child pornography were the only thing in the story sex as both 7-year-old-in-older-body and 50-year-old-in-younger-body involve characters that would SEEM (physically or mentally) to be minors. Or in the case of "Big", having sex with characters that are minors when they SEEM to be adults.

I think however that it would be very hard to write any story about something like this, include back story about how or why it happened, and be accused of writing 'sex and only sex'. And if there was only sex in the story my thought is that even the most ardent conservatives would have to pause and consider that there was more to all of this than just "oooh, children having sex with adults - golly gee whiz lets call the cops" given the distinction being made regarding mental and physical ages.

Also, in terms of loopholes: fanfics of "Marchen Prince" or "Big" (or similiar fandoms - such as "Card Captor Sakura" or "Yami No Matsuei" or even "Bleach") can point out that the situation already existed IN the canon they're basing their story on and that it can be taken as an exploration of the issue.

... In other words, very grey area, my head hurts as well and if you truly are worried, I'd seriously suggest talking to the Illiterati for their opinion. For an Australian legal perspective (if you fall within the jurisdiction) I'd recommend approaching Nquisitor rather than Copperbadge or Idiotparade (as she has a law degree in Australia).

Hopefully this helps, sorry I can't give a conclusive answer.

Tien Riu

* leaving off that Australian federal law says 18 and over rather than 17 as irrelevant to the purpose of your question

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