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naraburns  nihil supernum  1yr ago (text post)   15603 thread views

Culture War Roundup for the week of December 19, 2022

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Especially since if you had spent time learning to produce art in that same artists style without the AI it could be a copyright violation.

I don't understand this; it is my understanding that this absolutely would NOT be a copyright violation. A style cannot be copyrighted, AFAIK, and the styles of influential artists have been copied forever (indeed, that is what it means to be an "influential artist). Can you elaborate?

If I generate photo-realistic CP of a child who does not actually exist, is that a crime?

Not in the US but possibly elsewhere. Unless of course the image is obscene or somehow is unprotected and illegal speech in another way, which is unlikely.

If I generate photo-realistic CP of a child who does not actually exist, is that a crime?

I'm going to bite that bullet and say 'yes'. The defence there is "but it's not a real child". However, the impetus is "I want to fuck a real child, but since I can't do that without being thrown in jail, this is the next-best thing". Or else "I don't want to fuck kids, but I'm happy to produce art for the sickos who do and take their money".

Since the consumer of child porn most likely would fuck a child if they could manage it, then that is indicative of desire to commit a crime (as for all the MAPs who are "but I don't want to do anything to a real child, I'm just romantically/sexually attracted without that being my will", if you're consuming child porn, yeah that argument doesn't hold too much water). Getting child porn of real children being raped and abused is not a victimless crime. Moving it one step up, 'this is photo-realistic so it looks like a real child but is computer-generated' is only a fig leaf. Since you can't fuck a kid without getting into trouble, and you can't have porn of real kids being really fucked without getting in trouble, you're settling for the next best thing.

Since you can't fuck a kid without getting into trouble, and you can't have porn of real kids being really fucked without getting in trouble, you're settling for the next best thing.

You can't tie up a non-consenting woman up and have sex with her, so therefore doing the same to a consenting woman who is pretending to be non-consenting is settling for the next best thing (and must be illegal or wrong). Spot the flaw?

I'm going to bite that bullet and say 'yes'. The defence there is "but it's not a real child". However, the impetus is "I want to fuck a real child, but since I can't do that without being thrown in jail, this is the next-best thing". Or else "I don't want to fuck kids, but I'm happy to produce art for the sickos who do and take their money".

Since the consumer of child porn most likely would fuck a child if they could manage it, then that is indicative of desire to commit a crime (as for all the MAPs who are "but I don't want to do anything to a real child, I'm just romantically/sexually attracted without that being my will", if you're consuming child porn, yeah that argument doesn't hold too much water).

Presuming all this, does it also follow that photorealistic first person shooter games, if they eventually become possible, ought to be illegal? Or rather, a video playthrough of a photorealistic first person shooter game where the player murders innocent bystanders. Of course, there are plenty of reasons to want to watch a video of a photorealistic first person shooter game other than wanting to live out the fantasy of what's depicted in the video game but lacking the legal ability to do so, but those reasons can apply to fictional photorealistic CP as well.

In the US, it is not illegal to merely desire to commit a crime.

Punishment for a status is particularly obnoxious, and in many instances can reasonably be called cruel and unusual, because it involves punishment for a mere propensity, a desire to commit an offense; the mental element is not simply one part of the crime but may constitute all of it. This is a situation universally sought to be avoided in our criminal law; the fundamental requirement that some action be proved is solidly established even for offenses most heavily based on propensity, such as attempt, conspiracy, and recidivist crimes.[4] In fact, one eminent authority has found only one isolated instance, in all of Anglo-American jurisprudence, in which criminal responsibility was imposed in the absence of any act at all

Powell v. Texas, 392 US 514, 543 (Black, J, concurring).

Besides, the only reason that non-obscene child porn is not protected by the First Amendment is that its production harms the child involved. New York v. Ferber, 458 U.S. 747 (1982). Hence, non-obscene depictions of children having sex that does not involve a real child are protected speech.

What is that one isolate instance?

That argument would also apply to someone writing the following erotic fanfiction: "two people have sex very erotically but without meeting legally relevant definitions of obscenity. One of them was only 17 years, 364 days, 23hours, and 59 minutes old, you sick fuck" (check out my AO3 account and fanbox for more sexy action featuring minors)

Can that be made illegal too, since it betrays a desire to bang minors? In fact, that parenthetical comment could be prosecuted under current caselaw about "pandering" if we use your definition!

Can that be made illegal too, since it betrays a desire to bang minors?

For start, having actual sex with 17 years old is likely to be legal in many places. See https://en.wikipedia.org/wiki/Age_of_consent#/media/File:Age_of_Consent_-_Global.svg

But filming it, drawing it, or talking about it can still be illegal in many of the same places!

(Edit: or getting married before having sex, in those blue states that recently raised the marriage age to 18, but left the age of consent at 16 or lower!)

Unless of course the image is obscene

How could such an image possibly not be obscene

Because in the United States, a work is obscene only if 1) the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; AND 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.

In contrast, a work can be child pornography even if it is not obscene. So, a work which has substantial literary value, when taken as whole, is not obscene, but might be child porn. Similarly, a work which does not depict sexual conduct (or excretion, as some courts have said) cannot be obscene, but it can nevertheless be child pornography, because "the legal definition of sexually explicit conduct [in the federal child porn statute] does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive." See here. And see US v. Knox, 977 F. 2d 815 (3rd Cir 1992)[Child porn conviction upheld where "[t]he tapes contained numerous vignettes of teenage and preteen females, between the ages of ten and seventeen, striking provocative poses for the camera. The children were obviously being directed by someone off-camera. All of the children wore bikini bathing suits, leotards, underwear or other abbreviated attire while they were being filmed. The government conceded that no child in the films was nude, and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time . . . with the obvious intent to produce an image sexually arousing to pedophiles. "].

Hence, many works can be child porn, yet not obscene.

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