Preamble

The purpose or rather intent of this news article is to address the increasing concerns by many deviantART members (including myself) as to the recent results from the new Policy Violation Reporting System and the deviantART Copyright Etiquette and Administration (CEA) team. I should stress that this is not meant as an attack or attempt to defame what the CEA team does. They do a fantastic job at making sure that deviantART is clean but rather it addresses a serious concern about interpretations of two FAQs, namely #565 and their compliance with United States Code Statutes.

Perspective on the Situation

To gain some prospective on the situation and what is being discussed in this article it is recommended that you read the following materials that you can better follow the discussion taking place in this article.

New report system puts FAQ into question. by =Mixedpie
Comment #725795542 on The new violation report system... by =Mixedpie
FAQ #565: You prohibit the submission of 'pornographic material'; what do you consider this to be?

For people that consistently frequent the forums like myself, you'll know what I'm exactly talking about. There's been a recent influx of both forum posts and journals raising serious concerns about how the Reporting System and CEA is dealing with materials that are clearly a violation of FAQ #565 stating that the end-user's themselves are misinterpreting the FAQ and not the staff. I however contest this position and say it's CEA that is themselves misinterpreting the FAQ which can lead to grave consequences.

Disclaimer: I do not claim myself as a lawyer or extensive legal expert. However I have considerable experience in dealing with the US Statute that is being discussed due to prior employment experience which I cannot reveal due to Non-Disclosure Agreements that are still in an enforced status. So keep that in mind before making your contributing thoughts.

FAQ #565 and United States Code Statute Title 18

FAQ #565 in a nutshell (for people not familiar with it or who have not read it by following the link in the Preamble) is a policy guideline concerning sexually-explicit material and their role on deviantART. It basically outlines what cannot be in mature content deviations and in-fact is a generalized cliff note of a United States Code Statute known as US Title 18, more specifically it's an addendum to US Title 18, Part 1, Chapter 110, Section 2256. The FAQ is quite clear cut, as it should be, as to what is essentially a violation and in my opinion it leaves no room for misintrepetation. However, as shown by evidence from posts by =Mixedpie, CEA seems to think there's a different intrepretation of it. What I will do now is compare both explanations from FAQ #565 and 18 U.S.C. § 2256.

FAQ #565 - Section 1: Masturbation

Hands should not come into contact with genitalia in a manner which is clearly a display of fondling or masturbation.

18 U.S.C. § 2256 - Subparagraph (A), Statement III

Except as provided in subparagraph (B), "sexually explicit conduct" means actual or simulated --- (iii) masturbation;

FAQ #565 - Section 2: Sexual Intercourse

Subjects should not be depicted in a clear display of sexual intercourse. This includes depictions of sexual penetration, oral to genital contact, genital to anal contact, oral to anal contact and may also include certain types of genital to genital contact, genital to anal contact, or oral to breast contact.

18 U.S.C. § 2256 - Subparagraph (A), Statement I

Except as provided in subparagraph (B), "sexually explicit conduct" means actual or simulated --- (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, weather between persons of the same or opposite sex;

Sections 3 (Sexual Body Fluids), 4 (Erections), 5 (Vaginal or Anal Spreading), or 6 (Adult oriented sexual toys) are not covered specifically in FAQ #565 and 18 U.S.C. § 2256. However as you can see Sections 1 and 2 of FAQ #565 are covered quite clearly under this statute and it's not really open to intrepretation. In-fact in 2004 US Title 18 Sections 2256 and 2257 were ratified to remove some loops that were used in the Adult Entertainment Industry since the late 1970s concerning Persuant of Records (covered in Section 2257) and minors.

To me this raises serious concerns about how deviantART is conducting themselves especially concerning the deviations in question that =Mixedpie referenced in her news article and complaints. The fact of the matter is this type of thing is not really open to intrepretation since it's not really a factor of deviantART Policy but a Federal Law that has been enacted to protect people against sexually offensive material. One could even argue that deviations that occur overseas that violate this and are not deleted or brushed off by CEA actually violates the importation clauses of 18 U.S.C § 2260 but that mostly concerns minors being depicted.

The fact of the matter is it's quite clear on what is considered sexually explicit material and it's not secular to one form of medium either, in-fact 18 U.S.C § 2257 Subparagraph (a) is quite clear on what is covered under produced materials, the same also applies in 18 U.S.C. § 2256.

Conclusions, Concerns and Comments

In conclusion I sincerely hope that deviantART and more specifically the Copyright Etiquette and Administration take this matter into serious thought. There can be very serious implications if the wrong person get's offended by their decision to note remove the offending material and further escalations are made. I'd hate to see deviantART be affected by this since it can be easily enforced if proper decorum is practiced and clear-cut decisions are made.

I would like to stress again that this is not meant as a form of subliminal attack towards deviantART, deviantART CEA or it's staff members but merely a serious concern about the recent activity and the hope that the situation is rectified in a professional and logical fashion to ensure that deviantART remains a safe and fun community for all of it's members and employees as I have nothing but the upmost respect for what they do to keep this place going after almost 8 to 9 years.