Monday, July 28, 2008

Why Copyright Laws Don't Matter To Anti-Porn Activists: Diana Russell's Myopia Revisited

Interesting article I discovered this morning from well known antiporn activist Dr. Diana Russell, where she explains the supposed angst she felt for publishing antiporn agitprop (in this case, her seminal essay series Against Pornography, which was ultimately released around 1994)..

But especially intriguing was this passage on why she ignores copyright law when she uses material from porn sites to promote her positions:

There were several reasons for my reluctance to request permission to include pornographic pictures from the pornographers who hold the copyright for this material. I didn't want to support the pornography industry by paying them to reprint their pictures. I also knew that the total cost of the permissions would be way beyond my means. [...]
Yeah, right, Dr. if that stopped Nikki Craft and Gail Dines and Melissa Fairley from thieving from porn sites. (Gee, I wonder how much Nikki Craft paid for those HUSTLER cartoons and pictorals she defiles for her site?? Or whether the Abby Winters girls will be getting any royalties from the good Dr. Dines for being used by them for her Stop Porn Culture slideshows??)

Russell also goes on to express her "fears" about getting sued for using such material without permission, yet then explains how those "fears" were overcome:

I consulted several attorneys about the likelihood that I would be sued if I self-published Against Pornography. Their opinions on this question varied greatly. The only attorney who actually examined my manuscript thought that the risk was considerable, not only because of the copyright laws but also because he believed that at least two passages in which I point an accusing finger at Larry Flynt, the publisher of Hustler magazine, and Bob Guccione, the publisher of Penthouse, could be regarded as defamatory. He therefore advised me to delete or change these passages. I commented that it would be a cop out to omit the names of these two notorious pornographers just as it would be a cop out to fail to mention Hitler when talking about those responsible for the Holocaust. Despite my defiant words, I had many sleepless nights worrying about whether I might lose my house -- my only significant material asset. But to give up this project out of fear of being sued by pornographers felt like allowing them to defeat and censor me.
I must also admit that my delusions of grandeur about what Against Pornography might achieve also played a role in my willingness to risk so much. I pictured a host of public figures opening the book and feeling horrified by the misogynist pictures, impressed by the research evidence on their harmful effects, and convinced by my theory that pornography is a significant cause of rape. I felt confident that some of the producers of the most prominent media programs, even if motivated by their lust for sensationalism, would want to cover or debate my book. I fantasized about Against Pornography becoming a catalyst for replacing the belief of many educated people that pornography is harmless, with knowledge of its destructive effects, including its promotion of violence against women and children. As I discuss later, this fantasy was not realized with the first edition of this book.
My insomnia was cured by a few conversations with Stephen Fishman, an attorney and author of an important legal text on copyright law (1996), who believed that the publication of Against Pornography would not violate this law -- for the following reasons. First, the reprinted pictures are part of a critical scholarly work that was written for educational purposes. Second, the book is not competitive with the publications of the pornographers whose pictures I reprinted. Third, since several of the sources (e.g., Hustler and Playboy) had policies that would have caused the owners of these magazines to deny me permission to reprint their material had I sought it, I was legally entitled to exercise my right to free speech by disregarding their restrictive rules. The fact that I believed that showing the actual pictures was necessary to effectively communicate my criticism of them and their effects constitutes the rationale for this entitlement.
Fishman also warned me, however, that regardless of my legal right to reprint this copyrighted material, the pornographers might still decide to sue me. Since it would cost me tens of thousands of dollars to mount an effective legal defense, being sued would have been financially disastrous for me. My anxiety about this possibility was greatly alleviated when I decided that a suit against me by pornographers for publishing "their" pictures in Against Pornography without their permission would probably generate enough support for me to organize a defence committee to raise the money needed to fight them in court. I also imagined that a good attorney might volunteer her or his services or be willing to work for a limited fee. This wishful fantasy has lasted to this day.
In short...pretty much the same argument that Adam Cohen of NoPornNorthhampton makes regarding Stop Rape Culture: the ends of wiping porn off the face of the earth justifies the means.

Of course, there was no suit from "the pornographers" filed against Russell's book.

The remainder of the Russell essay includes a general attack on liberal and Leftist men and women
for not sufficiently opposing porn on Russell's favored grounds.

Liberals and left-wingers are far more disparaging than right-wingers of feminists' anti-pornography politics. Most liberal and left women seem to have bought the view of their ideological brothers that pornography is just "harmless fantasy" that allegedly reduces rape and sexual abuse because it is cathartic i.e., male viewers get rid of their sexually aggressive urges by masturbating to pornography. Far from being harmlessly cathartic, pornography increases male aggression and willingness to rape and act out other forms of sexual assault and abuse.

It also includes a especially scurrilious assault on then ACLU director Nadine Strossen and her book Defending Pornography as being "liberal" and "antifeminist" in her "enthusiastic celebration" of pornography and its evils.

The American Civil Liberties Union is a prime example of a liberal organization that has increasingly become a watchdog for the interests of pornographers (for substantiation of this point, see Dworkin, 1988; and Dworkin and MacKinnon, 1993). Nadine Strossen, the current President of the ACLU, spends most of her book Defending Pornography arguing against censorship, claiming that Catharine MacKinnon and Andrea Dworkin and all the rest of us anti-porn feminists are virulent advocates of it. She frequently refers to us by derogatory names such as "the feminist procensorship movement" (1995, p. 15); "MacDworkinites" (as if we are all clones of Andrea Dworkin and Catharine MacKinnon); "anti-sex crusaders," and "pornophobic feminists" (1995, p. 20). Her ally, Marcia Pally refers to us as "right-wing feminists" (1994, p. 16).
Although censorship appears to be Strossen's favorite word, she never even attempts to define it. From the examples she cites, though, her definition appears indistinguishable from what most people would consider the exercise of their free speech rights to protest. For example, Strossen criticizes what she calls "the censorial impact of such coercive tactics as boycotts" (1995, p. 210).
However, Strossen does not just defend pornography in her book; she enthusiastically celebrates it. In her chapter on "positive aspects of pornographic imagery (pp. 161-178)," she includes testimonials by other women on the joys of pornography. She quotes the following passage by Ann Snitow, an editor of the book, Power and Desire (1983):

Think, for example, of all the pornography about servants fucking mistresses, old men fucking young girls, guardians fucking wards. Class, age, custom -- all are deliciously sacrificed, dissolved by sex. (Cited in Strossen, 1995, p. 176)
Not surprisingly, Strossen's feminist-bashing book was enthusiastically feted by the media, most of whose representatives share her misrepresentations of the views of anti-porn feminists.

Yet for all the smack directed at liberal and Leftist men and women, and anticensorship and sex-positive feminist "liberals" and Leftists, Russell is more than willing to drop names of certain radical activists when it suits her purposes (emphasis added by me):

Although I received many reports from individuals of the powerful impact Against Pornography has made on their opinions about pornography, my expectations of the willingness of public figures to endorse this book turned out to be extremely unrealistic. The uncorrected galleys were sent to at least 26 public figures requesting their endorsement of the book. Only Gloria Steinem, Phyllis Chesler, and Tipper Gore did so. Two other positive responses were forthcoming: Noam Chomsky said that he would like to endorse the book if he could find the time, and Ralph Nader, although he declined to write an endorsement, offered to help publicize the book. .

So it seems that Noam Chomsky has been anti-porn long before he claimed in 2006 that he was "blindsided" by "The Hustler" (sic) magazine. And considering Nader's long-time affinity for pandering to right-wing populist elements, his sympathies with antiporn agiprop surprises me not at all, either.

So interesting to look into the mind of a zealot, isn't it???

Tuesday, July 15, 2008

Fair Use, 2257, and Double Standards: A response and challenge to NoPornNorthampton

Adam Cohen of NoPornNorthampton dropped by to comment here recently. As much as I vehemently disagree with NPNH and their allies, on many levels and on many issues, I do welcome his willingness to come by and debate. I will note that this blog is always open to those critical of our position. Likewise, I challenge Adam Cohen and others in the anti-porn blogosphere to show the courage of their convictions and do the same, something they are often not open to doing.

To start out with, Adam Cohen has posted a response to Renegade Evolution's long-standing contention that the anti-porn slideshow used by Stop Porn Culture and similar material on anti-porn websites (including NPNH), which show explicit pornographic images in order to critique them, are in violation of Federal "2257" documentation laws. Cohen counters that the legislation contains a clear exemption for "noncommercial or educational distribution" of such material, basically allowing a "fair use" exemption to 2257.

(At this point, I also want to point to an excellent post on this subject by Elizabeth at Sex in the Public Square. Elizabeth also respectfully takes issue with some of Ren's contentions about fair use and 2257.)

I think a lot of this debate flounders on confusion as to what the legal status of 2257 is at this point, having been amended and greatly expanded last year, only to be struck down in the Sixth Circuit Court. So what is actually covered by 2257 at the moment is unclear.

The original version of 2257 did not have broad application to "secondary producers", however, the amended version did. The "educational" exemption that NPNH cites may very well be in effect per the original version, however, "secondary producer" provisions in the amended legislation call this into question.

Adam Cohen accuses us of trying to censor anti-porn speech. That's not the intention of any of the writers at this site (or any other sex-positive activist site that I can think of). While I can't speak for everybody here, I'm actually very against the amendments to 2257, BUT, if this is to be the law, then the law MUST apply equally to all – no special dispensation for being on the "side of the angels". One of the major objections to the "secondary producer" provisions of the 2257 amendments is the potentially harmful effect that it will have on the sex-related blogosphere, who under the provisions of these amendments, might be considered "secondary producers" of internet porn and charged accordingly if not in possession of a full compliment of 2257-related documents. But the anti-porn folks, apparently, are supposed to get a free pass to show this material without such restrictions. This is nothing less than viewpoint discrimination, plain and simple, and if the 2257 laws are enforced this way, it only compounds the already-problematic free speech implications of such legislation.

To use a specific example, one of the sites we have on our blogroll, SugarBank,* is a prime example of the kind of site that would probably be targeted as a "secondary producer" under the amended legislation. Yep, its a pro-porn site with an abundance of porn imagery found within. However, its quite clear from reading the site that the images are used as a basis for discussion and critical commentary on various pieces of pornography and about the porn industry. Certainly not the kind of discussion and critique that NPNH and the like would agree with, but that goes without saying. Should the government get the expanded 2257 regulations it wants, what do you think the likelihood that a site like SugarBank will be granted the kinds of exemption and latitude that NoPornNorthampton and Stop Porn Culture seek for themselves? Should such an enforcement pattern come to pass, I'd go so far as to say that this would provide a strong legal basis for challenging the constitutionality of these 2257 provisions, on the grounds that they legislate unconstitutional viewpoint discrimination.

And this doesn't even begin to cover laws about not taking reasonable precautions to shield minors from material that's not age-appropriate. This is something John Stagliano is facing jail time for, yet this is also something that Stop Porn Culture and NPNH don't even begin to make such an effort to do when they show explicit images. Again, if you support such laws and the reasoning behind them, then why do you hold yourself above them? A case of "do as I say, not as I do", perhaps? Nor does this even begin to cover the ethical implications of using images of porn performers as poster children for a kind of anti-porn politics that, odds are, the performers in the images would not even remotely support if asked.

So, Adam, since you apparently have an interest in all this, and since you've posted explicit images on the NPNH site yourself on a few occasions, care to join me in opposing the expansion of 2257 to secondary producers, or at least support a broad exemption for ALL fair use and critical commentary of porn? Even sources that are highly favorable to the images in question? If not, I call hypocrisy on that!

* As an aside, let me once again give my highest recommendation to SugarBank and its proprietor, Sam Sugar – it you haven't checked out this site, you definitely should!