#and there is a big difference between mean and validly critical of things just to be clear

[stardyng]

Transphobia in the LGBT Community

To hear cisgendered lesbian and gay people say transphobic things is not as rare as we like to believe it is. It may not  happen as concurrently as with heterosexuals, but it does happen way too much especially for a self-proclaimed accepting and inclusive community. That brings a certain sense of exclusion into our community, one that was haunting this community since it was created. This transphobia often exist in reason of their misunderstanding or lack of knowledge many have on trans folks and on trans people in general, in reason of their own extreme self-denial on the non-conformity they have on their gender which they take out on trans folks often by excluding or hating them, in reason of the newfound and rather widespread acceptance of privileged white gay men  in North America that created a unity with heterosexuals that’s leading to them trying to distance themselves from trans people, in reason of the hate people feel on the fact that we include trans rights as one of the many sort of rights the LGBTQ community have to fight for especially since it’s more controversial than marriage equality per example and also because of the anonymity that many cisgendered women feel that are aimed at trans women.

So much that a substantial amount of discussions that include gays/bi/les about trans people often include a lot of muzzling, unrivaled venom, harassment and even in the worse case scenario death threats. All of these negative feelings and the ignorance that exist in the community about trans folks  really intersect with trans folks when these trans folks happen to also be a sexual minority and are therefore enforced into regular social situations with ignorant cisgendered sexual minority  folks and that leads to certain conflicts, to feelings being hurt and to the exclusion of transgender folks  in general.  Really, there’s a clear systematic problem that exist in the LGBTQ community when it comes to trans rights and trans folks in general that is created because of LGBTQ organisations, the queer media, from queer men and even more from queer women.

To be blunt, LGBTQ organisations typically ignore trans folks and their issues. Despite the fact that these people have always been in the front of the revolution for queer rights politically and socially, they have just as concurrently received wrong end of the stick, especially non-binary and agender ones. The thing is that often, they are lumped with the rest of the community so people assume that trans folks are rightfully catered in queer spaces but they have always been just an afterthought. Big organisations often just have a limited amount of trans folks who are mostly white to fit with the token system in order to earn more funding rather than actually focus of the needs of trans folks who are probably the more marginalized part of the queer community. This is to the point where the basic needs of these people are not even met by these organisations. Food and sanctuary for homeless trans folks, a rightful healthcare free of bigotry, protection in their workplaces, the public bathroom debate and security from different kinds of assaults are all things that are ignored by these organisations despite the fact that trans folks (and queer people of color)  are the part of the community the most attacked and marginalized by our society.

On the other hand, when these organisations try to talk about trans issues, it’s mostly highly ignorant and apathetic cisgendered queer folks who do it and that have more negative affects than it has positive which leaves trans perspectives mostly absent from these organisations. This invisibility in these organisations (and in the media) leaves these people with no one there to represent them especially in these so called safe spaces. That’s not forgetting the constant invisibility that is present in the media with the exclusion of trans folks in LGBTQ history, and the atrocious and rare representation of trans folks on tv which creates a lot of misconceptions and perpetuates ignorance. In the end, there’s simply just so much to do in order for trans folks to truly feel safe and included in queer safe spaces and organisations and they should feel included and safe instead of constantly having to defend and advocating themselves in the community. By ignoring a major portion of our  community, we are only undermining our vow for actual equality.

In the entire LGBTQ community, one of the biggest gaps that exist  has to be the one between cisgendered lesbians and queer trans women. For starters, there is a troubling number of non-intentionally transphobic lesbians whom not only fear trans women but seem to also believe myths about trans women that they often openly perpetuate like how trans women fit into this very strained, old-dated way of being a woman which lesbians have fought extremely hard to dismantle in a political and social sense with media only contributing to this perpetuation as it also ignore all the range of gender presentations that trans women harbor and only focus on this tired stereotype. Of course, in comparison to other ways transphobia transpires in the lesbian community this is nothing and one of the ways which overshadows this one has to be the transphobia in the dating scene.

Often when lesbian trans woman are searching for a partner, they are rejected everywhere because of their gender state despite the fact that trans women do not harbor any physical trait that is consistent and common to every single trans woman despite the fact that they are trans. That’s because the reason for this rejection and their so called ‘’lack of attraction’’ of trans women only exist in reason of their perception of the concept of what it is to be a  trans women which often stem from cultural perceptions and in reason of the stereotypes and myths that exist about trans folks.  But many ignore or invalidate these claims since these claims which feel quite unfair and very accusatory  don’t perceive themselves as transphobic. There’s also the fact that it’s not easy to tell the difference between honestly not being attracted to a trans individual and not being attracted to a trans individual in reason the repulsion and distress of the concept being with someone they see as being actually a man which is obviously a perspective smothered in our society transphobic constraints which are often mediated in a socio-culturally that only oppress, estrange and dehumanize trans women.

This very big gap that exists between both communities doesn’t particularly stem from the treatment trans women are subjected to in the lesbian dating scene as it mostly is present reason of TERFS who are a group of cisgendered lesbians who are radical feminists whom mainly focus their time on constantly perpetuating exaggerated myths and ideas about trans folks which are typically shared by conservatives christians. The term itself means trans-exclusionary radical feminists which while rejected by the group describes their ideologies perfectly as they believe that transwomen are not only men but their goal is to invade safe spaces that are inclusivity for women and also believe that these ‘’predatory men’’ simply appropriate femininity for gains, whether they be social or sexual. Thankfully, this group is  small in number however they are also extremely visible and vocal enough to create a toxic gap between cisgendered lesbians and trans women.

They first and foremost spread many rumors about trans women such as the myth that trans women force other lesbians to date them by antagonizing them by saying that these women are transphobic by refusing to date them (It only is if it is because they are trans) which they perpetuate this specific myth in order to paint trans women as not only men, but also as rapists. It doesn’t really stop there as this gender-critical will use every method possible to dehumanize trans women and even more exclude and attack them. They often disallow these women from entering women only spaces and from certain LGBTQ inclusive events and certain organisations, they bully and harass  trans men into not transitioning often with myths and stereotypes, they generally just mock and harass trans people, they out them to their family and friends, they expose personal info about them to the world, they dedicate sites into putting them down,  they mock these women bodies and simply offer some of the most atrocious and disgusting manifestation of transphobia online and offline. They paint themselves as good people by saying that these actions validly embodies feminism and that they are only doing this to protect cisgendered women from trans women.

To a much lesser degree, the relationship between gay men and trans people is troubled as most gay men do not have any problem with the transgender community and do not try to take trans rights away from trans people and it’s generally not common nowadays as a big number of gay men are participating in the movement that’s created for trans acceptance and for trans people to have equal rights. However, an equal amount gay men simply have a unconcerned opinion on trans people which only turns into this belligerent hostility when gay men start to intersect with trans folks. The negativity of this intersection can come from both community as there are as many gay men who are transphobic as there are trans folks who are homophobic. However this transphobia which is established enough to be very hurtful is much more of a problem since discrimination tends to affects people who are lower on the social pyramid more. It’s definitely not as hurtful as the discrimination coming from cishets. Per example, even if in a LGBT space, some gay men constantly use the t-word, the space itself offers much more safety than the heterosexual one. That doesn’t change the problem itself which typically involve stereotypes.

Such stereotypes include the one that trans women are inherently attracted to men, and only transitioned into to be with heterosexual men which ultimately insinuate that the gay and trans communities cannot intersect. There’s the myth that trans men embodie this narrow-minded way of being masculine e which lead to gay men invalidating and questioning trans men when they do certain gay male traditions that are feminine in nature, the stereotype that trans men are actually just lesbians with body issues, that trans women are in some way or another into this reflection of themselves as women or the very misogynistic  stereotype that gay trans men are straight women who are not adequate since they are so comfortable with gay men and wanted to be with a gay man so much that they become one. This stereotype ultimately paints femaleness as so inferior that women have to escape it and despite it’s ridiculousness, it’s so incredibly sexist that it also became a common belief since misogyny is so widespread that it can be attached to almost all the types of discrimination. Regardless, these get really problematic when they are shared.

The place where the biggest amount of problems takes place in the gay male community is in it’s exclusive dating scene which has cisgendered masculine muscular white gay men as its center. In fact, the community as a whole has this image as the forefront of the community and that definitely has a certain amount of effects on trans men. The first being that some gay men validate their sexualities by degrading women’s bodies and more specifically, their genitalia. Some trans men still haven’t done the surgery on their lower half which is why it’s not only hurtful but also why many gay men actively exclude the entire trans men community in very disgusting ways (It’s okay to not want to date a guy for having a vagina, it’s just the way you do it that makes it okay or not okay and not every trans men have vaginas). Generally, this attitude towards this type of genitalia is regressive since it ignores the diversity that exist when it comes to gender identities and sexual orientations. Regardless, this idealization of this specific body time which seems okay at first actually ends up being cissexist and misogynistic as it shames every queer men who are not gay, who are of color, who are slim or/and effeminate, who are either not in the back half of their 10s or not in their 20s and/or are transgendered.

Thing is not being attracted to everyone is perfectly fine and no one can be but grouping everyone of a specific race, sexuality or a gender state(cis, trans) and deeming every single one of them as inferior and inherently not dateable because of stereotypes and myths about that specific part of them is is not fine and rather discriminatory regardless of whether it be conscious action or not(which is why not being attracted to a certain gender does not quality as that isn’t inmate). In general, in order for there to be progression we need to let the trans voice be heard and respect the people voicing their thoughts on trans issues instead of portraying them as simply being bitter or even just jaded. Conversations about these issues help positively influence some people's mindsets on trans folks which is why as a community, we should start doing this. So start calling out transphobia and  start including trans issues when it comes to discussion about LGBTQ rights whether they be bathroom laws which can be exclusive to trans folks and honestly, simply knowing that everyone deserves to individually treated with dignity and courtesy regardless of their presentation is a good start which can be done by confronting all the myths we hold,  the biases we harbor and our sometimes exclusive viewpoints so that hopefully, one day, we’ll stop treating the movement for equality like the LG movement and more like the LGBT movement.

#lgbt movement #lgbtq #lgbt #transphobia #transgenderism #transgender #trans men #trans women #transgender men #transgender women #genderqueer #lgbt community #lgbtq community #problems in the lgbt community

[laboratorium2d]

The Copyright Law of Embedding Just Got a Lot More Interesting

Tim Lee has a remarkable story at Ars Technica about a remarkable copyright case, McGucken v. Newsweek. Its headline, "Instagram just threw users of its embedding API under the bus," is not an exaggeration. (Disclosure: I am quoted in the story, and I learned about the case from being interviewed for it.) The facts are simple:

Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. So instead Newsweek embedded a post from McGucken's Instagram feed containing the image.

This is the third case I am aware of in the Southern District of New York in the last two years on nearly identical facts. One of them, Sinclar v. Ziff Davis, held that the Mashable was not liable for an Instagram embed. The court reasoned that by uploading her photograph to Instagram, photographer Stephanie Sinclair agreed to Instagram's terms of service, including a copyright license to Instagram to display the photograph -- and also thereby allowed Instagram to sublicense the photograph to its users who used the embedding API. Thus, Mashable had a valid license from Sinclair by way of Instagram, so no infringement.

McGucken agrees with most of this reasoning, but stops just short of the crucial step.

The Court finds Judge Wood’s decision [in Sinclair] to be well-reasoned and sees little cause to disagree with that court’s reading of Instagram’s Terms of Use and other policies. Indeed, insofar as Plaintiff contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument. The Terms of Use unequivocally grant Instagram a license to sublicense Plaintiff’s publicly posted content, and the Privacy Policy clearly states that “other Users may search for, see, use, or share any of your User Content that you make publicly available through” Instagram.

Nevertheless, the Court cannot dismiss Plaintiff’s claims based on this licensing theory at this stage in the litigation. As Plaintiff notes in his supplemental opposition brief, there is no evidence before the Court of a sublicense between Instagram and Defendant. Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content, none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense. (citations omitted)

Lee did something smart with this dueling pair of cases: he got Facebook (Instagram's owner) to go on record with its interpretation of its own terms of use.

"While our terms allow us to grant a sub-license, we do not grant one for our embeds API," a Facebook company spokesperson told Ars in a Thursday email. "Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."

In plain English, before you embed someone's Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don't, you could be subject to a copyright lawsuit.

This statement, I think it is fair to say, comes as a surprise to Mashable, to Judge Wood, and to all of the Instagram users who embed photos using its API. Major online services offer widely-used embedding APIs, and media outlets make extensive use of them. I would not say that it is universal, but it is certainly a widespread practice for which, it is widely assumed, no further license is needed. If that is not true, it is a very big deal, and a great many Internet users are now suddenly exposed to serious and unexpected copyright liability.

McGucken is not the end of the story. I would have said -- and in fact I initially told Lee -- that it is possible the court would reach a different conclusion at a later stage of the case, once it had more facts about Instagram's terms of use. That ... no longer seems likely. But it is still quite possible Newsweek could win and be allowed to use the embedded photograph. It raised a fair use defense, and might well prevail on that at a later stage. It might also be able to rely on the server rule.

The server rule, which can be traced to Perfect 10 v. Amazon.com from the Ninth Circuit in 2007, holds that only the person whose server transmits a copy of an image "displays" that image within the meaning of the Copyright Act. In an embedding case like Sinclair or McGucken, that would be Instagram, not Mashable or Newsweek -- that is how embedding works. There is no dispute that Instagram is licensed to publicly display copies of these photographs; the photographers agreed as much when they uploaded them. So on the server test, no sublicense is needed; embeds are noninfringing.

The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman's photograph. In a detailed opinion, the Goldman court considered and rejected the server test. (Side note: There was an important potential factual distinction in Goldman. There, unlike in Sinclair and in McGucken, the photograph had been uploaded to Twitter by unauthorized third parties, who could give no license to Twitter and thus none to the defendants. But this distinction played no part in Goldman's legal analysis. While these facts could be relevant to the existence of a license, they don't affect whether the image was displayed or by whom.)

To summarize, there are two possible routes to finding that API embeds of a photographer's own uploads are allowed: either the service itself displays the image under the server rule, or the embedder displays it but has a valid sublicense. Goldman rejected the server rule, but did not consider the existence of a sublicense. Sinclair did not consider the server rule but held there was a sublicense. McGucken did not consider the server rule -- inexplicably, Newsweek did not ask the court to hold that there was no direct infringement under the server rule -- and held that there was no sublicense. No court has considered and ruled on both arguments together, despite the fact that they are joined at the hip.

A particularly careful and thorough critique of the server is Embedding Content or Interring Copyright: Does the Internet Need the "Server Rule"?, by Jane Ginsburg and luke Ali Budiardjo. They argue that the server rule misreads the Copyright Act and should, with Goldman, be rejected. They believe, however, that the sky will not fall, because licenses will fill any gaps that should be filled. They note that YouTube's terms of service, for example, explicitly provide for a license grant from uploaders to YouTube's users, and they predict that this practice will be common:

Therefore, it seems likely that platforms can (and will) utilize Terms of Service agreements that are sufficiently broad to protect themselves and their users from infringement claims based on user “sharing” of platform content through platform mechanisms.

I would have thought so, too. Hence my surprise at Instagram's position. There are two possibilities here. One is that Instagram does not explicitly grant a license because it believes the server test is the law. That position has been risky ever since Goldman. The other is that Instagram is willing to expose its users to copyright liability when they use its system as intended. I think it is not unreasonable to describe this, as Ars does, as throwing its users under the bus.

One last twist. In late April, Sinclair filed a motion for reconsideration of the holding that Mashable had a sublicense from Instagram, including some challenges to the court's interpretation of Instagram's terms of use. The main brief in support of reconsideration could be clearer, but her reply brief puts the issue squarely: "Nowhere has Mashable put in the record any proof as to how Instagram 'validly exercised' its right in granting Mashable a sublicense of Plaintiff’s photo." There things sat, until on June 2, Sinclair called the court's attention to the McGucken order, and then today, June 4, called its attention to the Ars story published just hours before. I speculated to Lee that McGucken "is going to blow up the Sinclair case." I shouldn't have used the future tense. It already has.

#law