Fair use under fire

February 23, 2006 by

How Internet publishers and copyright owners are negotiating the murky waters of fair use rights in our world of hyper-fluid technological boundaries is an increasingly common news topic. Last week, for example, the Electronic Frontier Foundation posted news that the Recording Industry Association of America does not consider it fair use to copy one’s own CDs to an MP3 player. And just this week, a Los Angeles federal judge ruled that Google’s use of thumbnail images is not fair use and infringes on an adult website’s copyrights.

Marjorie Heins, founder and coordinator of the Free Expression Policy Project at the Brennan Center for Justice at NYU’s School of Law, explained that it is “very difficult to predict” how judges will rule in fair use cases, making it important for journalists to educate themselves.

Because fair use principles form a cornerstone of free expression, in 2004 the Brennan Center started researching the health of fair use among people involved in cultural or democratic exchanges of ideas. The result of the research is contained in the recently-released public policy report Will Fair Use Survive? Free Expression in the Age of Copyright Control, written by Heins and Tricia Beckles, a former research associate at the Brennan Center.

As mounds of snow in the New York City streets turned gray and slushy, Heins spoke with Online Journalism Review at length about the report and about the state of fair use as it pertains to online journalists.

OJR: Describe fair use as it relates to news reporting.

Marjorie Heins: News reporting is one of the classic examples of fair use, but like all of the examples, it is very difficult to predict when a particular court might determine that a reporter or an editor has stepped over the line from fair use into copyright infringement. So, journalists are facing some of the same problems as artists and scholars and bloggers — and almost anybody else who wants to discuss, report on or share cultural materials faces — with respect to copyright.

There are similar problems with trademark law, which also has fair use provisions, and the courts have developed a kind of sensitivity to free expression interests so that trademark owners don’t totally control the use that’s made of their images, their phrases, their logos. But that’s also hard to predict.

The main purpose of the research we did — which is summarized in the report Will Fair Use Survive? — was: to determine how well the fair use and free expression principles, that are so important to preventing control and censorship of information and speech, are doing. To what extent people are really able to make use of them? And to what extent are the industry practices such as sending cease and desist letters that contain overly broad assertions of copyright or trademark control interfering with fair use?

OJR: What did you find?

Heins: Let me back up a bit just to give a sense of the methods we used. The first challenge was to figure out how we were going to do our research because it’s very difficult to design a truly random study of, to even identify, people who have received cease and desist letters, who have had questions or concerns or who have self-censored because of fear of being sued.

So we figured out a couple of different methods of research. We created focus groups. We talked to people, writers and filmmakers … just to have general discussions and get a sense of what their attitudes and knowledge was and what experiences they’ve had. We did an online survey.

We analyzed over 300 letters from the Chilling Effects website, both cease and desist letters and what are called take-down letters under the Digital Millennium Copyright Act, which is a law passed by Congress in 1998. The DMCA, among many other things, gives copyright owners the power, pretty much to demand from Internet Service Providers that materials be taken off their servers, just simply on the bald assertion that it violates copyright. So, we analyzed those letters to get a sense of what kind of claims are being made, and, to the extent we could, to figure out what kind of responses, how much material was actually taken down, to what extent people were able to get material back up, to what extent people were intimidated by cease and desist letters or not. And we did some telephone interviews of some people who had posted letters on this Chilling Effects website. …

So, what did we conclude after we had pulled together all this information? There is basic awareness that fair use exists. … We had lots of people who were not particularly engaging in political speech or reporting on public affairs but maybe had a small business out of their home who would get a cease and desist letter from a big company saying, “You’re using our trademark.” …

One of my favorites was the woman who was making ceramic piggy banks, and she called her website Piggy Bank of America.com. Sure enough, the Bank of America sent a cease and desist letter. She found her way to a student law clinic, which sent a response to Bank of America saying, “Go away. This is not a trademark infringement.”

All kinds of people are generally aware of fair use and of copyright law, but they, for the most part, have very little idea of what it is. That’s understandable because the fair use statute, the part of the copyright law that delineates fair use, is not very precise. …

We concluded that there really is a need for more straightforward, simple information — and it’s always a challenge to translate law into simple English — and guidance with some basic things, like how to respond to a cease and desist letter.

And another thing that’s very much needed is more pro bono legal help. A half dozen law student clinics around the country are providing very valuable service for lots of people, but it’s hardly enough to meet the need, and most people cannot afford — we’re not just talking about the very poor, we’re talking about most middle-class people — to be involved in a copyright lawsuit or in many cases even to pay a lawyer the $10,000 to $20,000 it might cost to try to head off a lawsuit. So, many people tend to cave, they tend to settle, they tend to be intimidated.

And another thing we determined [has to do] with this Digital Millennium Copyright Act, the provision [Section 512] that allows for these take-down letters. Basically, it’s called a safe harbor provision, and it says to Internet Service Providers [that they] will not be liable as a contributory infringer if [they] respond to one of these take-down letters expeditiously by removing the material that is assertedly a copyright infringement. So, the law doesn’t force [ISPs to do this], but it holds a very powerful club over their head.

The underlying question is, why should an Internet Service Provider, which is basically like your telephone company, ever be liable for what you say over the telephone line? So the law starts from an assumption that’s dubious, but there you have it. So Internet Service Providers, for the most part, are going to respond expeditiously in order to take advantage of the safe harbor and avoid what the law says would be possible contributory infringement liability. So there’s a situation where [the law] gives a very powerful weapon to copyright owners to get material taken down.

There’s another report that came out from USC. Jennifer Urban, at the law school runs the Intellectual Property Clinic, which just got started last year, and a former fellow from the Samuelson Clinic up at Boalt, Laura Quilter, wrote a paper analyzing DMCA take-down letters from the Chilling Effects website as well. And the conclusions are quite similar.

A lot of these letters have flaws, to begin with. They sort of don’t comply with the law. But ISPs tend to respond by taking down the material anyway. [We found that in] lot of the letters that do sort of comply with the formalities of the law — they give all the information required and say it’s in good faith and assert copyright infringement — [but] the claims of infringement are rather thin or questionable, or at least there would be a question for a court as to whether it’s fair use. … There are some numbers in the report which you can look at, but there are certainly many situations in which material is coming down and is not being put back up.

The person who is being targeted [sometimes] never finds out that there is a procedure for writing a counter-notice and getting the material back up, so another conclusion of the report is that it would be very useful to work with ISPs to try to encourage them to give better information and assistance to their subscribers in these situations. Very often they just take the letter at face value and respond by threatening the subscriber that they’re going to take down their whole website unless the material is removed immediately, or they’ll shut down the website without even communicating with the subscriber. …

One example that we saw a lot of on the Chilling Effects site is this group, which calls itself Avatar, and it describes itself as a planetary enlightenment group, sort of like Scientology. … Some of the critics of Avatar, people who’ve been through the process and think it’s a sham, say it’s an offshoot of Scientology. There are discussion groups, where people exchange their experiences and exchange critiques and often post parts or even all of Avatar materials. So Avatar sends these Section 512 take-down letters to Google to basically get these discussions removed from the Internet. … Certainly the primary purpose of these discussions was commentary and critique. And these are persons who are not subscribers and so under Section 512 they probably don’t even get notice that their commentaries are being removed. So here’s a case in which this company is using this DMCA take-down procedure as a method of suppressing criticism, basically.

OJR: What is your reaction to the news that the Recording Industry Association of America may not consider it fair use to copy a CD that you own to your MP3 player?

Heins: There’s been quite a lot of discussion among copyright profs about this statement — especially since the RIAA’s lawyer apparently said the opposite at the Supreme Court argument in the Grokster case. My own view is that copying a CD which you own to an iPod or other device for personal use should be fair use.

OJR: What is your reaction to the news that Google has lost a lawsuit alleging copyright infringement for images found in its Image Search results?

Heins: This decision in the case of Perfect 10 v. Google takes too narrow a view of fair use and conflicts with a court of appeals precedent in Kelly v. Arriba Soft, which held that using thumbnail images on a search engine is fair use. The judge in Perfect 10 v. Google pointed to little differences between the Google and the Arriba search engines, but its analysis is not convincing. Hopefully, this will be reversed on appeal.

OJR: What do online news publishers need to be especially aware of? Especially with the problems of unpredictability in fair use judgments as it is, and then in the rapidly changing world of the Internet — are there particular pitfalls or traps awaiting online news publishers that people should be aware of?

Heins: I think the problem is similar in journalism, both online and off, to other areas where free expression guarantees are needed. And in the context of copyright law, fair use is one of the main free expression guarantees. And in the past, news reporting has been considered a very strong case for fair use because of its obvious importance in disseminating information and the timeliness issue, the fact that even if you could get permission and could afford to pay whatever the license fee was, by the time you did so, it wouldn’t be news anymore. … I think it was the Rodney King tape which became a valuable property but was also highly newsworthy — could you use it, how much of it could you use? There are obvious copyright pitfalls with the use of any copyrighted material, even a small snippet of it.

You know there’s a lot of reproduction of articles on the Web, websites that simply take articles from somewhere else and reproduce them without permission under the theory that this is part of news reporting and commentary and is part of the exchange of ideas and it should be considered fair use. … It’s an unclear area of the law. There are some court decisions that suggest that an article, an image, a photograph, something that is taken complete and reproduced without any transformative use, … just taken and reproduced complete, there is some case law that suggests that is almost always infringement. But the Supreme Court has not weighed in on that, so these are lower court decisions. And there are important arguments why disseminating — my being able to send to you a whole article from the New York Times because I think you’d be interested and it’s the best way of sharing the information or the opinion that’s in the article — there’s a very strong argument that that kind of exchange serves one of the important purposes underlying fair use.

So, both from the point of view of journalists being able to quote freely and in a timely fashion and journalistic commentators being able to quote and critique in ways that the copyright owner might not want to permit, and in terms of the rest of us who might not be considered journalists — which of course in the online world becomes an increasingly difficult distinction — the ability of the rest of us to be able to share and exchange complete articles … ought to be fair use. …

One of the big problems that arises — and people have looked at this and argued about this for the last 30 years since the 1976 Copyright Act incorporated fair use officially; it had existed before in the case law — is this argument that people really need something more specific. [In this argument, people say]: the fair use factors are so vague, it’s so unpredictable that it’s naturally going to have a chilling effect, and added to that are the very stiff penalties of copyright law, the fact that if you lose, you have to pay the other side’s attorney’s fees, which can be literally hundreds and hundreds of thousands of dollars. All that combines to chill the exercise of fair use and people need something more specific that they can rely on. It’s a very powerful argument.

Or, alternatively, people say, “Fair use just isn’t working because of all these factors that produce such a chilling effect, so let’s just forget about it and just have mandatory licensing.” [This is] like we have if a radio station wants to play a song, they don’t have to ask permission, they just have to pay a set fee. Or, “Let’s have everybody join Creative Commons.”

Those are all understandable arguments, and I’m all for Creative Commons, and in some circumstances, mandatory licensing is very valuable too, but we can’t give up on fair use. It’s critical because it’s precisely the fact that it doesn’t depend on permission, that the copyright owner doesn’t have total control of the way in which his or her words or images are used, commented upon, reproduced. Once you send it out into the world you don’t have total control. That’s what expression and culture and communication is about, so we need to figure out ways to make fair use easier for people to take advantage of and without reducing it to a specific counting of lines, counting of words, counting of pixels, which reduces the flexibility of it and the ability of the doctrine to respond to new needs. …

OJR: What should online journalists know about linking to other people’s websites?

Heins: I don’t want to be in the position of offering legal advice to the world in an interview. Any specific situation ought to be researched. But I am not aware of any legal precedent that says simply linking raises an issue of copyright. You’re not reproducing; I don’t think you’re really distributing. The copyright law lists the rights that are within the copyright bundle: publishing, reproduction, distribution, performance, making derivative works. I don’t see a link as any of that.

OJR: What are the best ways for online journalists to educate themselves?

Heins: They should read the report. They should read the Chilling Effects website — the Electronic Frontier Foundation has good information. They should be aware that there are a lot of different viewpoints about copyright and fair use. …

You have to be careful, or at least thoughtful, about where you get your information because there are a lot of different viewpoints out there on fair use. If you go to the Copyright Society of the U.S.A. website you’ll get warnings that basically say, if you use anything but a very short snippet and if you’re not absolutely sure, don’t take a chance on fair use. Well, that’s the opinion of one group, but you get a very different view if you go to the Electronic Frontier Foundation.

Now one thing that anybody who has looked into this area much … realizes is that what is fair use is basically what a court is going to consider fair under all the circumstances, including general practices in a particular environment. So … statements of best practices are important because they can influence the law. To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow. And in the area of journalism, it’s especially important that that happen. There are lots of examples in the report of online commentators, journalists of various kinds, [who face] attempts by those who are the targets of their criticism or commentary to shut them up.

One example is this blogger Robert Cox who was angry at the New York Times, and especially Maureen Dowd, because they didn’t have a requirement that columnists publish corrections, so he created a parody website with the New York Times’ correction page logo and put up his own correction. The Times sent a take-down letter to his ISP and a cease and desist letter to him, and he started publicizing that on his website and soon got a pro bono lawyer to write a letter to the New York Times saying, “You’re wrong, this is fair use.” And so in that situation the blogger prevailed. But I think it’s a fair inference that the Times just didn’t like the criticism.

Filed Under: Ethics Tagged With: , , ,

Can a Florida sheriff police obscenity on the Internet?

October 18, 2005 by

It wasn’t so long ago that the state of Florida was involved in a high-profile obscenity case when a county sheriff arrested members of the rap group 2 Live Crew for performing obscene material and a music retailer was arrested for selling the group’s album to an undercover police officer. The rappers and the retailer were eventually acquitted, and 2 Live Crew used the infamy to sell more albums.

Now history could well be repeating itself. Polk County Sheriff Grady Judd arrested porn site owner Chris Wilson, of Lakeland, Fla., on 300 obscenity-related charges on Oct. 7. Wilson’s site, NowThatsFuckedUp.com also has offered soldiers free access to pornography in exchange for gory images of dead Iraqis, a practice first reported on blogs, in the Italian media and on OJR. The obscenity charges do not relate to the gory images, and the U.S. military has said that it hasn’t been able to determine if soldiers actually sent in the photos since the images were posted anonymously on the site.

When I first interviewed Wilson for the Sept. 20 OJR article, he was reluctant to tell me what he did for work outside of running the site. “Everyone asks me that, and they always wonder why I don’t want to answer that,” Wilson said. “I live in a very religious community, unfortunately.”

I asked Wilson why the site was hosted in the Netherlands. “Amsterdam is a little more laid back than the U.S. is with sexual content,” he said. “Being based out of Amsterdam … it’s more or less a business move more than anything else. I don’t get harassed as much because of it. I get a little bit of harassment here in the States. It’s to cut down on my nasty e-mails, pretty much.”

The Lakeland (Fla.) Ledger reported that Wilson was a former police officer and had been investigated since March 2003 for operating porn sites in Polk County. At one point, The Ledger found, Wilson was contacted by a police detective and warned about running pornography sites out of Florida.

Wilson did not return my calls and e-mails for this follow-up story, but his attorney, Larry Walters, told The Ledger that the high number of counts against Wilson was inappropriate and was “an additional, pre-conviction punishment.” Wilson’s family struggled for five days to pay $30,100 bail, before he was released from jail on Oct. 12.

But how can one county in Florida prosecute obscenity cases on the Internet, where obscenity might as well have its own domain suffix? Sheriff Judd told me that his jurisdiction applies to any material that begins and/or ends in his county, regardless if the server or site owner is based in another state or country.

“This might be the first [case we’ve dealt with] where the alleged server is out of the country,” Judd said. “But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. … Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here.”

Judd told me Wilson previously ran a porn site called Core39.com, named after his police academy class number, and at one point had applied for a job as deputy sheriff in Polk County — but he wasn’t hired. Judd said the county has prosecuted cases related to Internet obscenity and hasn’t lost any cases in court, though some defendants have made plea bargains.

The anonymous Cyber Crime Law blogger writes that obscenity cases on the Net are rare due to the proliferation of material online — leading to a select few “special” cases such as this one.

According to the Supreme Court’s 1973 ruling in Miller v. California, for content to be ruled obscene, it must meet the following tests: 1) an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

While it’s difficult to judge the merits of the case without seeing the material that was seized, the Cyber Crime Law blogger argues the case could well have been pursued because of the notoriety of the gory war photos on the site. The blogger also says the site might have enough serious political value not to be legally considered obscene.

Kurt Opsahl, staff attorney for the Electronic Frontier Foundation, said his group hasn’t been contacted by Wilson, but would assist him if he asked for help. The EFF has posted a FAQ on its website to educate bloggers on the law concerning adult material online. Opsahl told me the EFF was worried that obscenity cases were being decided by community standards of the least tolerant places in the country.

“Under current law, the legal question of whether speech is obscene is determined partly by reference to local community standards,” Opsahl wrote me via e-mail. “EFF is concerned that these venue rules permits censorship of speech on the Internet under the standards of the least tolerant community, negating the values that the community standards doctrine was intended to protect — diversity and localism in the marketplace of ideas.”

Judd acknowledged that different communities have different standards. “I have heard descriptions vary from area to area in the country but obscene [in] our community standards goes beyond nude men and women …, ” Judd said. “When we’ve made cases, we have gone much further than what one judge refers to as ‘normal, good old-fashioned sex.’ … We look for outrageous conduct that shocks the conscience of the community. That’s all we bring before the court.”

Wilson’s site is still in operation with pornographic images, videos and the gory war photos. However, after the media attention NTFU received, there has been an uptick in discussions on the site related to the gory images and whether they are indeed helping to show an unedited version of war — or giving U.S. soldiers a bad image abroad. The site’s moderators and Wilson himself have pointed to a special blog on the obscenity charges, FreeChris.org, and Wilson has asked supporters to donate money to his legal defense fund.

Investigation stalls in military, media

As for the gory photos on NTFU and other websites, the military said it could not confirm the authenticity of the photos — or that U.S. soldiers had posted them. Army spokesman Paul Boyce told me there wasn’t enough evidence to pursue felony charges.

“If we get specific information, we will certainly look into that as well,” said Boyce. “But at this point, we are pursuing it instead from a more prudent standpoint by reminding soldiers of our policies dealing with the use of the Internet, weblogs, digital photos, personal e-mail, etc.”

I asked Boyce whether he had followed up on my previous report for OJR, which included an e-mail from someone named David Burke, who said he was a soldier in Iraq and has posted on NTFU under the screen name “diescreaming.” Boyce took note of the information and told me the Army would check into it.

But critics of NTFU’s gory photos and the possible involvement of soldiers were doubtful that the Pentagon was putting much effort into the internal investigation. Ibrahim Hooper is the spokesman for the Council on American-Islamic Relations, which helped bring the gore-for-porn story to wider attention by sending an open letter to Defense Secretary Donald Rumsfeld. Hooper told me he was disappointed with the Army’s investigation.

“[The Pentagon] decided to end whatever efforts they had because they said they hadn’t found any evidence that military personnel were involved — even though if you went to the site, somebody sent me one of the images where the person’s name and unit were clearly indicated in the photograph,” Hooper said. “All we can do is bring these things to the attention of the Pentagon; we can’t force them to do it. If they want to drop it at that point without having really gone into it, then that’s their choice. We stated at the time that we thought it was premature. There couldn’t possibly have been a full investigation in the time that was allotted and it was sending a negative message.”

Meanwhile, rank-and-file soldiers, Bush administration supporters and military bloggers have been largely silent on the issue, perhaps preferring not to fuel any possible scandal. Liberal blogger John Aravosis, conversely, has been stoking the flames by running photos taken from NTFU, with soldiers visible and gory parts censored. When the military said it couldn’t make felony convictions, Aravosis was livid.

“What exactly HAS the military done to get to the bottom of this?” Aravosis wrote. “They launched an investigation that lasted, apparently, a matter of hours. And now they tell us there’s nothing they can do, and nothing they’re going to do, about the outright racist abuse of Muslims by U.S. troops.”

While the military has been pretty silent on details of its investigations, the mainstream media, too, has tailed off quickly in covering the site and the gory photos. When they finally started paying attention to the story, the media just quickly repeated the basic details, noted the closing of the military investigation and barely any did investigative work of their own.

Bryan Bender, national security and foreign affairs reporter for The Boston Globe, wrote one of the more detailed reports on NTFU, and found that the military was indeed tightening guidelines of electronic media use by soldiers. But Bender hasn’t returned to the subject in The Globe yet because he’s had trouble verifying that the gory photos online came from U.S. soldiers in Iraq, he said.

“I am pursuing the story to determine if soldiers were involved in taking the photos and to figure out if similar photos floating around out there are also the work of U.S. servicemen and women,” Bender told me via e-mail. “I have come across quite a few on the Internet purported to be of dead Iraqis — and of U.S. troops as well. I haven’t made much headway yet, but I agree it warrants continuing attention by the media. The main hurdles are 1) figuring out if the photos are legit and 2) who took them. Some of them, quite frankly, look like they could be staged. Others appear real, but as you well know, anyone can post things on the Internet. Tracking where they originated from is not easy.”

How do soldiers feel?

Due to the sensitive nature of the website and subject matter, U.S. soldiers I contacted would not go on record for this story, even to denounce the site’s practice of posting gory photos.

One popular military blogger, who only goes by the pseudonym American Soldier, said he doesn’t believe the Army can stop soldiers from sending in these types of kill shots. “They can put out blanket warnings of UCMJ [Uniform Code of Military Justice] violations and then leave it at that,” he told me via e-mail. “The Army is all about complying but moves on and expects the rules to just be followed.”

I asked American Soldier if he thought it was a double standard when U.S. officials criticize Al Jazeera for running video of captured or dead American GIs while U.S. soldiers are possibly posting photos of dead Iraqis and celebrating the kills.

“I don’t give a fuck about dead terrorists,” he said. “They are fanatics fighting for a crazy cause. The more dead, the merrier. That’s what they want to be anyway. They are martyrs and they don’t care who they kill. Women, children, old people. There are a million differences between displaying American heroes who have fallen and these pieces of shit terrorists. So no, I don’t think anything is wrong with Americans posting pictures. Al Jazeera is nothing but a terrorist news MSM. … The Army really wants to control soldiers in general. They HATE the milblog sensation. They want to silence us.”

Another soldier who served in Iraq recently would only talk to me on condition of anonymity. This soldier thought the current generation of servicemen and women was much more numb to violence and had less qualms about exposing the world to what was happening at war.

“I think we’re desensitized now,” the soldier said in a telephone interview. “There were plenty of guys in Vietnam who took gory photos like that — and a lot of them have them now — but I don’t think a lot of them would expose them. At the time, when I was in Iraq, I had plenty of photos like that. You don’t know why. In Iraq, everyone’s pulling out digital cameras; it’s like a Kodak moment. Over there, you’re taking pictures of it and not really thinking that much of it. Then you come back and it sinks in. When you come back to normal life, you think, ‘Whoa, I can’t believe I did that.’ ”

This soldier thinks NTFU has been a PR nightmare for the Army, and thinks the military could easily figure out who shot the pictures and posted them online. But the soldier has little sympathy for Chris Wilson.

“This guy is waving the flag and the First Amendment, and how he’s supporting the troops,” the soldier said. “Bull-fucking-shit, dude. You’re cashing in on this. This is the best publicity stunt for his site ever. He’s probably dragged so much traffic to his site. He’s using these soldiers for his own good, for his own site. These soldiers are such fucking idiots, being used by this guy.”

While Wilson wouldn’t comment on his site’s aims, he has posted a quote on every page of the site, taken from the 1995 movie “The American President”:

“America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.”

* * *

Media Reaction to NTFU

“Horrifying? Oh, yeah. Horrifying but invaluable, because these pictures show a side of the Iraq war the American public doesn’t care to see and from which it’s been meticulously shielded. We’re spared the sight of flag-draped coffins arriving weekly to hometowns across the country even though we’re deluged with newscasts painting a shiny picture of soldiers fraternizing with Iraqi children. Death has effectively been eliminated from our media’s war coverage, as if protracted combat doesn’t involve killing, and killing isn’t gory, and the personalities of people who have to do the killing don’t eventually start warping in the most unpleasant ways.

“The photos posted on NowThatsF — Up.com strip off the blinders. Those brains splattered across a car’s dashboard? Not your usual human-interest story. The mocking commentary by the enlisted guys supplying the photos? Not so heroic. Together, they paint a picture of war as a dehumanizing hell, sans political commentary or analysis. Welcome to Operation Iraqi Freedom.” — Neva Chonin, San Francisco Chronicle, in Porn Wars, Part II

“The dissemination of imagistic truth from America’s involvement in the Middle East has been a long time coming, and, while the government might use the pornographic content of NTFU as a distraction, one must be cognizant of perhaps a more realistic motive: corralling American soldiers and closing the eyes of the American public. … The grotesque becomes something like pathos, intriguing our sympathies and altering our perceptions — the images of this war, previously censored but now presented on sites like NTFU, will most certainly redefine our gaze. With or without pants, the truth is making its way around the world fringed with photography, pornography, or, in the age of digital communication, warnography.” — Casey N. Cep, Harvard Crimson, in Warnography’s Visceral Allure

“These images produce immediate, visceral responses. That’s why they are so threatening to the authorities. They destroy the moment of rational detachment that arises when we ask, ‘Is this war (and implicitly, war in general) justified?’ … Show someone a high resolution, close-up picture of a broken corpse, where no limb is where you expect it to be. Does it matter if there are two bodies or one? If they are insurgents or soldiers? If it is war or murder? We feel an identical response no matter what the context. …

“What Wilson is doing is both excessive and necessary. As our society grows more desensitized to violence, the images that can jolt us out of our complacent and superficial posturing must become correspondingly more severe. Don’t support our troops; support our pornographers instead.” — Ken Tran, Daily Texan, in Graphic Photos Have a Purpose

“If there’s any merit to this cause [the FBI’s war on porn], then the obscenity contained on Wilson’s website should undoubtedly be one of the foremost targets. After all, photographs of naked adults engaging in sexual activity are one thing; images of bodies missing heads or organs splayed in the street are quite another. While The Chronicle defended the rights granted by the First Amendment just last week, those freedoms reach their limits in this case, being at odds with the international law established in the Geneva Conventions.

“If the federal government deems the standard version of pornography to be criminal activity, then there is no justifiable reason that the content on Chris Wilson’s website wouldn’t be considered equally offensive — if not a more dangerous form of public corruption. The more time that soldiers are allowed to continue submitting these images and their comments on a site accessible by the global community, the more we have to wonder just how out of order our priorities really are.” — editorial in Columbia College Chronicle, titled The new pornography

Filed Under: Ethics Tagged With: ,

Porn site offers soldiers free access in exchange for photos of dead Iraqis

September 20, 2005 by

Warning: This story contains links to unsettling images and sites where people glorify violence and pornography — and document the hell of war. If only life came with such warnings.

The Internet has proven to be a vast resource of information and knowledge, but it only takes one hyperlink to get from the profound to the profane. When reading an Egyptian blog a few weeks ago, I stumbled onto a bulletin board site called NowThatsFuckedUp.com (NTFU), which started out as a place for people to trade amateur pornography of wives and girlfriends.

According to the site’s owner, Chris Wilson, who lives in Lakeland, Fla., but hosts the site out of Amsterdam, the site was launched in August 2004 and soon became popular with soldiers in Iraq and Afghanistan. When female soldiers started to appear in the nude on the site, the Pentagon blocked access to the site from military computers in the field, according to the New York Post.

But the story gets more twisted. Wilson said that soldiers were having trouble using their credit cards in Iraq to access the paid pornographic content on the site, so he offered them free access if they could show that they were actually soldiers. As proof, some sent in G-rated photos of traffic signs in Baghdad or of a day in the life of a soldier abroad. Others sent in what appear to be Iraqi civilians and insurgents who were killed by suicide bombs or soldiers’ fire.

Now there’s an entire forum on the site titled “Pictures from Iraq and Afghanistan – Gory,” where these bloody photos show body parts, exploded heads and guts falling out of people. Along with the photos is a running commentary of people celebrating the kills, cracking jokes and arguing over what kind of weaponry was used to kill them. But the moderators will also step in when the talk gets too heated, and sometimes a more serious discussion about the Iraq war and its aims will break out.

Wilson told me in a phone interview that he is “not very” political and considers NTFU as a community site.

“People say, ‘This is a porn site so why are you talking politics?’ ” Wilson said. “But it’s actually a porn community, and any time you have a community with shared interests there’s going to be other interests. Just because somebody looks at porn doesn’t mean that they have a below-60 IQ and don’t know anything. I have doctors and lawyers and police officers and teachers, and it doesn’t surprise me that there are educated people who want to discuss things. It’s interesting, and I love reading it.”

Wilson has no qualms about running the gory photos of war in open forums that don’t require registration or payment.

“I enjoy seeing the photos from the soldiers themselves,” Wilson said. “I see pictures taken by CNN and the mainstream media, and they all put their own slant on what they report and what they show. To me, this is from the soldier’s slant. This is directly from them. They can take the digital cameras and take a picture and send it to me, and that’s the most raw you can get it. I like to see it from their point of view, and I think it’s newsworthy.”

Wilson says it’s a judgment call on whether the photos he gets are really from soldiers in Iraq or Afghanistan. After months of sifting through photos, Wilson has an idea of the quality of the digital cameras soldiers use and what the terrain is like in those areas of the world.

I couldn’t verify whether these gory photos were taken recently in Iraq by soldiers. But the U.S. military is currently looking into the site and trying to authenticate the photos — and take appropriate action if soldiers are involved. “We do have people who are specifically looking at that website, and I will talk to my colleagues and my bosses here and get back to you,” said Staff Sgt. Don Dees, a spokesman for U.S. Central Command (Centcom) in Baghdad.

Two people posting gory photos to the site responded to my e-mail query into their motivations for doing it.

“I access [NTFU] from my personal computer, the government computers are strictly monitored,” one person wrote to me. “I would never try to use this site or anything like it on a government computer. To answer your question about posting the gory pictures on this site: What about the beheadings filmed and then put on world wide news? I have seen video of insurgents shooting American soldiers in plain day and thanking God for what they have done. I wouldn’t be too concerned what I am doing on a private Web site. I’m more concerned of what my fellow soldiers and I are experiencing in combat.”

Another person whose e-mail identified him as David Burke was defiant about posting gory photos and said it was a tradition of all wars.

“Yes I have posted kill photos on other forum sites,” Burke wrote me in his e-mail. “The computers are military financed if not owned by the military. I think that with all the service members who are over here it was obvious that photos of dead insurgents would surface as time went on and it is not a new occurrence. There have been pics from all wars of the fighters standing over the bodies of the enemy. The insurgents are more than willing to showcase our dead and wounded so if people have issues with what’s shown on this site then they need to stay away and quit bitching about things they know nothing about.

“I made it real clear in most if not all of my posts how I feel about the Iraqi people in general and that feeling has not changed a bit in my time here. I [put] a good friend of mine [in a body bag] just a week ago and that really clinched it for me and my teammates. We will always shoot first and ask no questions, period. The military brass will always try to sanitize the effects of war, no matter when or where, and yes if it was possible they would censor all media coming out of this country, pics and stories.”

Condemnation for site swift

The story of NTFU and its unusual exchange of free porn for gory war photos was first picked up by an Italian blogger named Staib, and then the Italian news agency ANSA. Blogger/journalist Helena Cobban, who pens a column for the Christian Science Monitor, asked her blog readers for an English translation of the ANSA article and quickly received many versions that clarified what the site was about.

Cobban was horrified by the gory photos, but tried to make sense of the motivation of people who posted them — and tried hard to grasp the idea of a serious discussion of war on a porn site. She told me that taking and posting “trophy” photos of dead Iraqis was a gross show of disrespect and a violation of the Geneva Conventions. But she put the blame on the direction of military leadership.

“The important thing is for the U.S. military and political leadership at the highest levels to recommit the nation to the norms of war including the Geneva Conventions, and to be held accountable for the many violations that have taken place so far,” Cobban said via e-mail. “What I don’t think would be helpful would be further punitive actions that are still limited to the grunts and the foot soldiers, who already have the worst of it.”

The Geneva Conventions include Protocol 1, added in 1977 but not ratified by the U.S., Iraq or Afghanistan. It mentions that all parties in a conflict must respect victims’ remains, though doesn’t mention the photographing of dead bodies. This could well be a judgment call, and the celebratory and derogatory comments added on NTFU make the case more clear.

When I contacted military public affairs people in the U.S. and Iraq, they didn’t seem aware of the site and initially couldn’t access the site from their own government computers. Eventually, they told me that if soldiers were indeed posting photos of dead Iraqis on the site, then it’s not an action that’s condoned in any way by the military.

“The glorification of casualties goes against our training and is strongly discouraged,” said Todd Vician, a U.S. Defense Department spokesman. “It is our policy that images taken with government equipment or due to access because of a military position must be cleared before released. While I haven’t seen these images, I doubt they would be cleared for release. Improper treatment of captured and those killed does not help our mission, is discouraged, investigated when known, and punished appropriately.”

Capt. Chris Karns, a Centcom spokesman, told me that there are Department of Defense regulations and Geneva Conventions against mutilating and degrading dead bodies, but that he wasn’t sure about regulations concerning photos of dead bodies. He noted that the Bush administration did release graphic photos of the dead bodies of Uday and Qusay Hussein to the media.

Karns said that commanders in the field do have latitude to make their rules more stringent than overarching military regulations, but he didn’t expect that cameras would be banned in the field.

“I don’t think it will get to that point [where cameras would be banned],” Karns said. “All it takes is one or two individuals to do things like this that cast everyone in a negative light. The vast majority of soldiers are acting responsibly with cameras in the field. But on the Internet there aren’t a whole lot of safeguards and the average citizen can create their own site.”

Karns did say that if soldiers were posting these photos online, that it would have a negative strategic impact, especially when the enemy relies so heavily on the media to win the battle of perception.

Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, saw the gory photos as another black eye for the U.S. military after the Abu Ghraib prison torture photos.

“This is just another form of pornography,” Hooper told me. “I think this is something that should be strongly discouraged by military authorities. It’s going to give military personnel a bad name, it’s going to harm America’s image in the Muslim world and it’s just plain wrong. You have to wonder what this says about our military personnel, if first of all they’re dealing with pornography and why they would be reveling in the deaths of individuals in Iraq.”

Respected media outlets?

NTFU site proprietor Wilson says that the military blocking of his site upset him, but that traffic actually went up after it was blocked. He told me that if the military brass did get in touch with him, and had a good reason for him to remove the gory photos, he would.

“I get many requests for removal,” Wilson said. “I get 30 to 40 requests per day for removal for everything across the board on the site. I take each on a case-by-case basis. If [the military] wants something deleted because they think it’s a threat to national security or it’s showing too much, then obviously, yes, I’m going to get that out of there. But if they’re asking me to remove it because they just don’t like it, then no.”

Wilson says he supported Bush in sending troops to Iraq, but thinks it’s long past time that they need to be brought back home. He says he supports the soldiers, and thinks they are pretty split on whether they should be brought home or kept on the job in Iraq. Wilson has tried to obtain a less profane domain name for the site, NTFU.com, but that the domain’s owner was asking for way more money than it was worth.

Of course, the NTFU community is not alone in its fascination with the darker, more grotesque side of life. The site Ogrish.com has been around for six years, and includes photos and video of murders, cannibalism, and war kills. The owners of the site explain in the FAQ that they do not enjoy seeing this violent material, but that they are trying to provide an uncensored view of reality.

“Ogrish does not provide a sugar-coated version of the world,” the FAQ says. “We feel that people are often unaware of what really goes on around us. Everything you see on Ogrish.com is reality, it’s part of our life, whether we like it or not. We are publishing this material to give everyone the opportunity to see things as they are so they can come to their own conclusions rather than settling for biased versions of world events as handed out by the mainstream media.”

The site’s goal is pretty ambitious: “to become a respected media outlet for uncensored, unbiased news… [with] much more background and educational value to our content.” The site uses citizen correspondents in law enforcement and in medicine, much the way that NTFU depends on soldiers in the field who are armed with digital cameras.

Dan Klinker, who formerly was a co-owner of Ogrish.com and now handles PR, told me via e-mail that the site is not about glorifying violence, unlike NTFU.

“As far as I know Ogrish is one of the only sites in this niche that have been focusing on the facts rather than presenting things in a glorifying way like a lot of other sites do (including NowThatsFuckedUp),” Klinker said. “Just the name of that site makes it clear that there’s only one goal, which is to shock, glorify and entertain. The combination with bloody pictures in return for naked girls makes them lose all credibility.”

While it was difficult for me to ascertain the motivation for people who were posting gory photos to NTFU, I did talk to Steven Most, a psychology postdoctoral fellow at Yale University who has studied the effects of violent and sexual images. He helped explain what these horribly violent images had in common with the nude photographs of women.

“They both seem to be particularly arousing in an emotional way,” Most said. “Emotional stimuli can be rated in different ways. You could see something and rate how positive or negative it is. But separate from that is how arousing the image is. A positive picture of a cute puppy dog could be positive but not that arousing, whereas a picture of an opposite sex nude could be just as positive but be rated as extremely arousing. And a picture of a mutilation could be rated as extremely negative but highly arousing. Lately there’s been a lot of theories saying that what we’re drawn to is the arousing nature of an image regardless of whether we see it as negative or positive.”

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