But is it Pr0n?

TN reader and president of Blacklove Interactive Kelly Rued asks whether:

“player agency in an interactive sex game affects the media’s status as porn (legally and socially).”

I guess the argument might run like this: if two people having sex is it not pornography so is it porn if they happen to use avatars.

I would suggest that this should depend on who is viewing it. Certainly if there is a record of it, just as if there is a record of physical sex act, then this is a work and it it liable, based on its particular content, to fall under the category of pornography.

But what if there is no record and no one other than the two people involved ever see it – are they mutual and simultaneous creators / consumers of pornography, if so, why is this not the case in regular life; does the mere fact of mediation mean that there is a ‘work’ hence we have a legal category shift. In fact does the EULA comidification of data under the notion of ‘work’ force this shift?

All of which leads us to the broader question of whether categorizing it as pornography would serve a useful purpose, is this another law that needs re-evaluation in the light of virtual spaces?

Comments

[Derek Licciardi]

1.

And the rabbit hole goes deeper and deeper. Sometimes I think I should have choosen the blue pill.

[Bonnie Ruberg]

2.

I think that in-game sex, because it comes to us through avatar interplay and on a tv screen, is tempting to label as "porn," but that really it's a mutual, non-pornographic act (in some senses, at least) - much like RL sex, only realized through a different bodily medium.

[Mike]

3.

Interesting - my take would that online/in-game sex is porn (if interactive porn), precisely because its mediation does not come through a bodily medium. That is, the effect is entirely pscyhological, as with porn, not also physical, as with actual sex.

[Charles]

4.

We should look for interactive, mediated sexual services that are already established for precedent.

What designations are ascribed to phone sex? Unless a visual aspect is required for pornography (which one might be able to argue), then this seems to be a very similar case.

My understanding is that pornography, especially in the context of interstate commerce (a concern when the players may be in different states or even countries) is pretty grey in real life as it is. There are a number of overlapping laws and jurisdictions making the issue difficult to unravel even in simple cases of mail-order pornographic content, so this question may not be answered re: phone sex either.

[monkeysan]

5.

I think people are confused about what pornography is.

Here's what I mean:

A 'record' of a sexual act, whether visual or otherwise is not on its own pornography, even if it's graphic or explicit. Pornography is about intention as well as content.

There is nothing about the presence or absence of physical contact that is essential to the notion of pornography.

Pornography is not regulated by U.S. laws, obscenity is. Obscenity has to do with (in the U.S.) local community standards about sexual content in media. Obscenity laws are basically blind to intention. Whether a 'work' is intended to be pornographic (or even obscene) or not largely irrelevant in this context. Again, 'pornography' is not coextensive with 'obscenity'.

[Kelly Rued]

6.

Monkeysan, thanks for the helpful clarification. If I follow you correctly, then all of the legal issues surrounding record-keeping for the age of persons depicted in sexually explicit materials and laws regulating the sale and use of sexually explicit materials all are actually legally framed on obscenity laws rather than laws prohibiting sexually explicit media?

Therefore, dependent on the community in question, virtually created sexually explicit materials (avatar-based videos, images, etc.) would only be affected by these laws if they were deemed obscene in a court ruling. I appreciate the clarification as I was wondering how the law applied to sex bloggers and the like online (people posting graphic materials with no age-of-model record keeping and so on).

My only question then would be what counts as "community standards" for online materials, especially VR communities (like a MMOEG) which allow people from many different jurisdictions to share/post/acquire materials (some of which may be violating community standards in somebody's offline legal environment). Is the formation of an online voluntary community any protection from obscenity laws in a particular location or real life community? (this is not a request for IANAL advice, btw, but me wondering how the "check this box to accept these terms" splash page on most adult sites would actually hold up to laws based on "community standards")

I am not sure if the voluntary communities we subscribe to online afford us any protections if we post or recieve materials that would be considered obscene in our real life communities. I looked up a bit about the Title 18 codes regarding child pornography issues but am not sure at all how/where this is interpreted in court cases OR where I can find info about adult obscenity issues (such as local laws against BDSM or homosexual materials that don't expressly evoke anything relevant to child porn law- well outside of the bit about record keeping requirements).

[Andy Havens]

7.

In 2002, the US Supreme Court struck down the Child Pornography Prevention Act of 1996, saying that key provisions were "overbroad" and "infringed on established protections of material with artistic value that does not violate community standards."

Among other things, the ruling struck down a ban on the posession or sale of virtual child pornography and other "created" imagery that would, if generated "naturally," often be in violation of a variety of laws. For example, the staging of "Romeo and Juliet," if performed with actors of the age of the characters, would get the production company in deep doo-doo. Same holds true for the creation of art (whether considered erotic or not). Free speech wins.

As monkeysan says, it ain't about porn, it's about obscenity. And if the material is created virtually, the level of legal protection is going to be much, much higher... because you are essentially engaging in speech activity rather than "activity" activity. And speech is much more protected than "doing stuff," because speech is considered more inherently precious (at least in the US), and less inherently dangerous.

I can type the words, "I'm killing you with my Vorpal Sword of +3 Dy-no-mite," or "My dog is humping your leg," as easily as, "Welcome to the Casbah," and it has no inherent affect on your property, livelihood, happiness, legal status, etc. It's speech. It may be "art." You can ignore me. Unless what I type is slander or falls into other categories of illegal speech (which is hard as heck to prosecute), I can speek, you can respond, blah blah blah. Welcome to the Bill of Rights.

When the speech becomes obscene, though, it can be a bit more regulated... sometimes. But, as I said, stopping obscene speech and prosecuting obscene speakers is dreadfully hard. Bad history. Basically Americans have this idea that if you don't like the book, don't buy it. Don't like the movie, walk out. Don't like what I'm saying, walk away, turn the channel, or shout me down yourself, ya loud-mouthed bugger.

There have also been several legal decisions that say that a "channel" is not responsible for the speech of its members, unless tha channel knowingly allows for illegal activities or impedes the work of law enforcement officials. So, for example, just because County Alpha says that the use of the word "Buttocks" constitutes obscenity within its borders, and my ISP hosts a website that County Alpha residents have access to... the residents can NOT sue me for promoting obscenity. Now, if I knew that one of my hosting clients was selling reality-created child porn on my servers, I would have to report that to the FBI, because it is a federal crime.

But virtual child porn? Nope. It's speech, not in any way linked to reality. And that's where we are with VWs.

My avatar in SL can do all kinds of crazy stuff that I'm not doing in RL. It's an actor. A character. Am I flying when it is flying? Dancing when it is dancing? Heck, I'm not even talking when we're chatting. It's a mode of speech. A complex, multi-dimensional mode of speech, but speech nonetheless.

I can have sex in real life while eating a Big Mac. Does that make fast food porn? I can videotape myself having sex while watching Sesame Street. Is that child porn? It may be deeply weird, but it's protected speech. [Note: if I try to sell it, the Children's Television Workshop will sue the boojum out of me for copyright infringement, as well they should].

"Having sex in a VW" is, in terms of real-world legal talk about sex... is currently meaningless. Unless you can prove that the actions of the *person* -- the player -- at the time of the VW related action were somehow illegal and related to sex (for example, enticing a minor to engage in illegal activity), I can't see how whether your avatar was having sex or surfing or dancing or shopping or singing or fighting or dissolving in acid has anything to do with porn or obscenity currently.

The only current legal issue (in the US, that I'm aware of) is that publishers need to take "reasonable" measures to keep minors out of "adult" or "mature" themed games and entertainment. Beyond that, it's all speech. Regulation of such is at the discretion of the publisher, is a "rules" issue, and not a legal one.

Party on.

[Dr, Cat]

8.

My understanding was that both obscenity and pornography are legal terms & are regulated by law. In addition to their other function as words that convey information when used in sentences. Or confuse people when the speaker and the listener have different ideas of what they think the word means exactly. :)

As I understand it, obscene material is illegal to sell to anyone, even if they're 99. Might be legal to possess or create, not sure on that and it might vary by state. Pornography is (mostly) legal to make and to sell to people 18 and over, and illegal to sell to people 17 and under. Most adult mail-order businesses, though, have a list of certain cities, counties, and entire states they won't ship orders to, because the local laws are so restrictive they'd rather just avoid getting in trouble. Florida is on that list - Oklahoma might be too, not sure. Oklahoma once prosecuted the California owners of a BBS for selling materials that fit within the "community standards" of California, but did not do so in that Oklahoma city where a police officer dialed out and accessed it from. A landmark case for the question of "how is jurisdiction determined online".

As for a more down to earth definition, my favorite is the one given by some judge in the 70s or 80s as part of his ruling in a case about pornography. "I don't know how exactly to define it, but I know it when I see it." :)

[Nato Welch]

9.

I agree that in the legal context, it's mostly about obscenity. I'd still ike to address the semantics of pornography.

A "pornograph" would indicate a record of a sexual nature. Records kept in human memories have pretty much never counted, because they're only recallable by the possessor (pending some more advanced neural interfacing technology).

The thing about the Internet medium is that it presents and, at times, requires numerous opportunities to create recordings of interactions. Many of these have been defined as "ephemeral" copies, that aren't meant to stick around long; nonetheless, these records are reproducible for parties other than the participants.

[Dr. Cat]

10.

One more definition of the term. "Erotica" is whatever you like. "Pornography" is what somebody ELSE likes.

[Duncan]

11.

Video games, even interactive ones, as porn? Ok, lets look for existing precedents. Most people will when asked what they consider pornography will initially point to some obvious VISUAL medium. we associate the visual with pornography. So, a video game depicting visual acts, whether interactive or not, would have visual resources included with it to represent the interactivity. They have the makings of the pornographic output regardless of the inherent interactivity.

Ok, lets move on a bit. We also understand pornography as something static and inherently non-interactive. We have pictures and movies and stories (which can all span from the merely erotic to the fully pornographic). I've read the above arguments that these are considered pornography because they are an existing record of sex. Following that, the argument would be that any virtual sexual interaction, non-recorded, would be the same as actual interaction.

But it's not, and we already have a precedent that nobody has mentioned. Phone Sex companies have been around for quite a while now with, according to the proliferation of ads found in less discriminate local newspapers, little decline. This is a form of virtual sexual interaction (with the telephone as medium). I would assume that it is not recorded. (Who would want to talk on a phone sex line knowing that it would be recorded?) But, at the same time, it would widely be considered pornographic in nature. It is restricted and limited and falls under many of the same taboos and regulations.

So, is any form of virtual sex then pornography? Is any sexual interaction between two (or more) people not existing in the same location, inherently pornographic. I'd say that precedent says so. People who want exposure to it are supposed to provide proof of age (if not identity). We do this because the proliferation of it has mad gaining access to it so much easier than it used to be. Pictures, video, games, and the Internet especially, remove the human element that used to be involved in obtaining restricted materials. They make regulation easier to circumvent, and therefore more important if we want to regulate it.

I would say that virtual sex is a form of pornography by it nature of being virtual. By extension, any sexual interaction that is not done in earnest (and presence) is, in some form, pornographic.