Tumblr's New 'No Sex' Rules Show The Problems Of FOSTA And EU Copyright Directive In One Easy Move

As you may have heard by now, on Monday, Tumblr announced that in just a couple weeks it will be banning porn from its platform as part of a change to its rules. Now, of course, Tumblr has every right to run its platform however it sees fit, but it does seem notable that it wasn’t all that long ago that Tumblr openly defended the fact that Tumblr hosts a bunch of “Not Safe For Work” content, explaining that they supported free speech, and didn’t want to be in the business of carefully determining whether or not something was “artful” photography or just porn.

Of course, that was before Verizon bought Yahoo (which had previously bought Tumblr). And it was before FOSTA became law. As Wired points out, this move to ban all porn comes just weeks after Apple banned the Tumblr app from the App Store over some illegal images (even after Tumblr was alerted and took those images down). It’s not hard to see how some execs at Verizon might have looked at all of this as a headache that just isn’t worth it — especially given the potential criminal liability that comes from FOSTA. Remember, a few months back, we noted that a bunch of online trolls were deliberately targeting women they didn’t like on various platforms claiming (often without evidence) that they were engaged in prostitution. Many of those targeted used Tumblr. It’s not difficult to see how Verizon just decided to rid itself of this whole headache.

But, beyond demonstrating the censorship problems of FOSTA, this move by Tumblr is also doing a bang up job demonstrating why mandatory filters, such as those pushed for in Article 13 in the EU Copyright Directive will be so harmful. Filters are notoriously terrible at accurately taking down only the content they’re supposed to take down. Amusingly, one of the key talking points of Article 13 filter defenders is that “well, these platforms do a great job stopping porn, so clearly they can stop infringement.” This is wrong on multiple levels, starting with the fact that the determination of what is “infringing” is entirely different from what is “porn.” But, more to the point: the porn filters don’t work very well at all.

Buzzfeed has a hilarious list of Tumblr posts that have been flagged as being adult content, that clearly… are not. Here are just a few:

https://wigglytuff.tumblr.com/post/180764720268/so-long-gay-bowser

http://mmishee-art.tumblr.com/post/180766467279/heres-a-collection-of-what-was-flagged-my-dog-is

http://sorrynotsorrybi.tumblr.com/post/180780755456/hey-so-staff-its-really-really-shitty-to-flag-as

Some are even claiming that reblogging Tubmlr’s own announcement resulted in flags:

http://bodyglitter.tumblr.com/post/180767858182/pettydavis-hrefnatheravenqueen-fucking-this

But for examples of flags that are perhaps even more relevant for those of us here on Techdirt, law professor Sarah Burstein, who runs a Tumblr and Twitter feed all about design patents (often highlighting how ridiculous those design patents are) found that a bunch of her design patent images resulted in flags as inappropriate content. I am not kidding:

Apparently, boot-scrubbing design patents are #TooSexyForTumblr pic.twitter.com/6Ijz8bAIA7

— Sarah Burstein (@design_law) December 4, 2018

LED Jeans, too: pic.twitter.com/jtcmYEZGBM

— Sarah Burstein (@design_law) December 4, 2018

And troll socks: pic.twitter.com/VXTRhxd9Bf

— Sarah Burstein (@design_law) December 4, 2018

This @LouisVuitton bag? pic.twitter.com/Zp8Gd1UwnR

— Sarah Burstein (@design_law) December 4, 2018

LOL: pic.twitter.com/xFyss5BpvC

— Sarah Burstein (@design_law) December 4, 2018

And a line drawing of someone wearing a “Backless Support Bra with Integrated Underwear”: pic.twitter.com/bnXXVt7v1Z

— Sarah Burstein (@design_law) December 4, 2018

A post about a litigated design patent for an “auto handle”: pic.twitter.com/8Eud311GcC

— Sarah Burstein (@design_law) December 4, 2018

Really? pic.twitter.com/qtuJrK6K6Y

— Sarah Burstein (@design_law) December 4, 2018

Okay, so some of these I can kind of understand but….COME ON: pic.twitter.com/1FDpUML4u9

— Sarah Burstein (@design_law) December 4, 2018

They just keep coming: pic.twitter.com/9rFWkb67LI

— Sarah Burstein (@design_law) December 4, 2018

Heart-shaped necklaces – also #TooSexyForTumblr: pic.twitter.com/v4NPP6Fn82

— Sarah Burstein (@design_law) December 4, 2018

Believe it or not, those are just a few examples from a much longer list of flagged posts about design patents for apparently violating Tumblr’s “porn” filter.

While this is a complete travesty on a variety of levels, it demonstrates the utter futility of believing that filters will work and won’t make a huge number of mistakes, pulling down perfectly reasonable content. Those working on laws (especially over in the EU) such as the EU Copyright Directive’s Article 13 would do well to actually heed this message.
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