Declaration of Lile Elam in ALA v. Pataki

March 19, 1997

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK


AMERICAN LIBRARY ASSOCIATION, et al.
Plaintiffs,

v.

GEORGE PATAKI, et al.
Defendants.

97 Civ. 0222 (LAP)

 


DECLARATION OF LILE ELAM

I, Lile Elam, of Palo Alto, California, do declare:

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1. I am the founder and sole proprietor of Art on the Net, a not-for-profit company with its principal place of business in Menlo Park, California, that was founded in order to provide an international artist site on the World Wide Web (the "Web"). Art on the Net -- also referred to as art.net -- is a collective of artists helping each other utilize the Internet as an innovative and low-cost means of displaying their work to a broader audience and communicating with their viewers (our Web site is located at http://www.art.net). 

2. I am the Webmaster of the art.net Web site; in this role, I help artists get on the site, maintain our computer system, and coordinate decisionmaking by the cooperative of artists that comprise Art on the Net. Art on the Net helps our member artists use the Internet, gives them space to express themselves, and helps them learn Web protocols so that they can create and maintain their own studios. 

3. Art on the Net also maintains mailing lists to enable groups of artists to communicate among themselves about relevant topics. I submit this declaration on behalf of Art on the Net, its member artists and people who use our services in support of the plaintiffs' motion for preliminary injunctive relief against Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law § 235.21(3)) (hereinafter the "Act").

4. I am an artist working in watercolor, oil painting and mixed media. Although I am trained and have been employed as a computer systems administrator, I am devoted to my work as an artist. Most of my paintings are abstracts or landscapes. I am very interested in using computers to create art. For example, I often do drawings by hand, scan the drawings into a computer and then color them with the computer.

5. With the help of some friends, I founded Art on the Net in June 1994. During a display of my works in an open studio event in April of that year, a friend and young entrepreneur approached me to purchase my oil painting entitled "Art on the Net." We spoke about the benefits of having art available on the Internet for viewing, and he offered to sponsor a Web site that would enable artists to share their art. We engaged in a barter, and I traded my oil painting for an Internet connection for one year.

6. I created the art.net domain and established the Web site on the Internet. I then contacted artists in the San Francisco Bay Area who I believed might be interested in showing their works on the Internet and helped them post their works on the art.net site. With time, artists from around the world, who had either heard about Art on the Net or discovered the site while surfing the Web, sought to join our community. Through this process, we became a collective of artists who supported one another in our efforts to understand the Internet and the Web. We began to use the Web as a medium in and of itself as if it were an oil paint or watercolor medium.

7. Our Web site and our services are maintained entirely as a cooperative. All of our member artists participate in decisions regarding the Web site and the goals of our organization. Most of our member artists take part in our organization by participating in our decisionmaking and by teaching one another how to use the Internet to post their art work. 

8. We receive our funding through our artists' annual membership fees of sixty dollars per artist. Our budgeted expenditures for this year total less than $15,000. Nevertheless, our expenditures actually exceed our contributions, and I cover the difference either with my own funds or by bartering my services in order to pay for certain items.

9. I am the only employee of Art on the Net. I work on a part-time basis and pay myself an hourly wage -- at a rate substantially less than I charge to do computer consulting work for other organizations. I often barter my computer programming skills in exchange for different equipment and services that Art on the Net requires.

10. Today, we assist over 110 international artists -- including poets, painters, photographers, sculptors, digital artists, audio artists, performance artists, animators and hacker artists -- in maintaining online studio and gallery spaces on Art on the Net's Web site. The art.net site is a collection of different Web sites which either depict art works or convey art-related information. Users who access our site can view, download and print the art work that we provide, although our artists retain their intellectual property rights in their works. Neither Art on the Net nor any of its member artists charge users who access our Web site. 

11. An Internet user who accesses our site is welcomed by our "home page," attached as Exhibit 1, which features a digital manipulation of my oil painting "Earth and Sky" and a menu of the different items that an online visitor to our site can view. The menu of choices on our home page includes: "Artist Studios," "The Gallery Room," "Artist Resources," "Artist Soundbytes," "What's New!," "Current Art Happenings," "Links to Other Sites," "About Our Site . . .," "We Support Free Speech!," and "Please sign our Guestbook . . . ." A user can click on any one of these choices and access the information that is "linked" to each choice.

12. For example, a user can click on "Artist Studios" and then choose the type of art she wishes to view, see Exhibit 2, review descriptions of artists working in that medium and their work, and then actually enter a particular artist's studio and view that artist's work. Thus, a user can click on the "Visual Artists" listing and scroll through a descriptive list of visual artists. See Exhibit 3. If the description of a particular visual artist catches the user's attention, the user can simply click on that visual artist's name and enter her studio.

13. A user accessing the site can also access "The Gallery Room" and move through different "rooms" of works, just as one would move through a museum. The art.net virtual gallery has a main "foyer" and four "hallways" to different rooms. See Exhibit 4. An Internet user walking through the first hallway, for example, can go into a room featuring a master printer based in New York, a room run by an all-volunteer gallery based in Seattle, Washington, or a room featuring the work of a young Estonian artist, simply by clicking on any of these rooms. Id.

Online Materials Provided by Art on the Net

E-Mail

14. Art on the Net assigns "art.net" e-mail addresses to its member artists so that visitors to our site can easily contact our artists. These addresses are not actual e-mail accounts; rather, a message sent to an art.net address is forwarded to an account that a particular member artist maintains on her own through an Internet service provider.

15. Art on the Net's member artists regularly communicate with other Internet users via e-mail. These communications concern ideas and critiques of each other's works, negotiations with potential buyers, discourse about artists in history, discussion on how to utilize the Internet as a new and innovative medium for artists, conversations about personal matters and debates regarding art and political issues.

Mailing Lists

16. Art on the Net also sponsors mailing lists for different artistic communities on relevant events and issues -- artists@art.net, reviews@art.net, talk@art.net, artlaw@art.net, translate@art.net and help@art.net -- to allow artists to communicate with one another about topics of interest to the art community. Some of these lists are open only to Art on the Net members while others are open to all users on the Internet. 

17. Talk@art.net is a list open to all users on the Internet; it has over 150 participants who post messages on a variety of art-related topics. Artlaw@art.net is a mailing list on art law -- focusing primarily on Intellectual Property issues -- which is open to all users on the Internet. Artlaw@art.net has less than ten participants -- many of whom are law school students.

18. Artists@art.net, reviews@art.net, translate@art.net and help@art.net are only open to members of Art on the Net. All our members receive mail from artists@art.net and reviews@art.net. Artists@art.net is a forum to discuss issues and decisions about our Web site and other activities. Reviews@art.net is a list on which our member artists review each other's works. We choose a particular artist's studio to be the subject of this list each week. Translate@art.net is a mailing list subscribed to by at least ten of our member artists who are fluent in languages other than English. These artists translate non-English messages that we receive from our Web site or on talk@art.net or artlaw@art.net. Help@art.net has about twenty-five subscribers who field questions that our new artists have on setting up their studios on art.net.

19. I manually maintain the list of users who receive messages posted to these mailing lists but do not in any way restrict or screen the list of recipients, other than limiting recipients of messages to artists@art.net, reviews@art.net, translate@art.net and help@art.net to Art on the Net members. The technology that I use allows any user on the Internet to post a message to our mailing lists, even to those lists that we try to maintain as limited to Art on the Net artists. With respect to our open mailing lists -- artlaw@art.net and talk@art.net -- we do not screen users who ask to receive messages posted to these mailing lists. I simply add users to these lists upon receiving requests to join.

20. The discussions that occur via these mailing lists are not moderated and artists can discuss any issue they believe is important. Some of the discussions on these mailing lists may include sexually oriented language and themes. For example, talk@art.net recently held a discussion of indecent slang words. Artists from different cultures participating in this mailing list discovered how some of the words normally used in their language may be considered offensive in other cultures. In this way, Art on the Net helps artists learn from and about one another's culture and forms of expression.

The World Wide Web

21. Artists may join the art.net Web site by paying a small annual fee of sixty dollars and committing to donate one piece of their art to the site. Artists then curate and maintain their own online studio or gallery spaces on the art.net Web site. Art on the Net assists artists in scanning images of their works into digital files and then transferring the files to art.net through file-transfer protocol. We require that artists do not post prices of the works in their studios and that artists post their e-mail addresses so that if users are interested in purchasing an artist's work, they can contact the artist directly. 

22. Artists on art.net each curate their own sites; as Webmaster of the art.net site, I do not in any way censor the studios of our member artists. Art on the Net is strongly opposed to art censorship and believes that its member artists should be able to express themselves on the Internet without any restrictions. 

23. Hundreds of thousands of online users anywhere in the world can access the variety of art works and art-related information and discussion that Art on the Net and its member artists provide on our Web site, in mailing lists, and via e-mail. The art.net Web site, for example, has 25,000 files and receives 45,000-60,000 hits per day. On March 10, 1996, for example, users from 4,473 unique host computers accessed our Web site. This global exposure has lead to art purchases and to off-line shows and exhibits, as well as press interviews for the artists. In a number of cases, visitors to the Art on the Net site have contacted artists and purchased their works.

24. We believe that our site is used by both adults and minors, given that users can link to our site from other sites that are geared to specific adult or children's interests. For example, Art on the Net is listed in the "Art Soup" directory of "Yahooligans for Kids" (http://www.yahooligans.com) -- a Web site that lists sites that the Web search engine Yahoo believes would be of interest to children -- even though Art on the Net has notified Yahoo that our Web site includes works that depict nudity.

25. The art.net site includes a tremendous number of artistic pieces by a talented and diverse group of artists who work in a variety of different media. Many of the artists who have studios on art.net are visual artists working in photography, painting, drawing and digital visual art.

26. For example, Patricia Mae Young's studio (http://art.net/~patricia/welcome.html) features a series of watercolor and pastel landscapes of locations in Singapore, Ecuador, Bali and the Rocky Mountains. R.J. O'Connor's studio (http://www.art.net/Studios/Visual/Rjocon/rjocon.html) contains drawings, paintings, calligraphy and photography. Ralph Ivy is a drawer and a writer who posts an electronic journal --which is actually in book form -- of notes and sketches on art.net (http://www.art.net/Studios/Visual/Rivy/Book1/book1-cover.html). An Internet user can leaf through Ivy's journal simply by clicking on the "pages." These are only three examples of the over sixty-five visual artists who display their work on art.net.

27. Some of these visual art works on the art.net site use nudity and sexual images. Michael Betancourt's studio (http://www.art.net/Studios/Visual/Betan), for example, includes a series of photographs that utilize assemblages of male and female body parts, including nude images, sexual organs and sexual activity, to create abstract landscapes (related to the work of Salvador Dali and Hans Bellmer). See Exhibit 5. In a discussion of the images on a USENET newsgroup, some Internet users found Betancourt's photographs to be "pornographic." 

28. Diane Fenster also maintains a studio of digital photography on the art.net site (http://www.art.net/Studios/Visual/Fenster/ritofab_Home/fenster.html), which features "Two Running Rails of Mercury," a depiction of a supine nude woman blending into railroad tracks against the background of a small town. See Exhibit 6. This piece was one of three works from Fenster's "A Ritual of Abandonment" series of photographs that were removed from a Baltimore corporate exhibit because of their sexually graphic nature. Id.

29. Saelon Renkes, another visual artist on our site, works in photographic fine art and includes a series of nude photographs of women in her studio (http://www.art.net/Studios/Visual/Saelon/show2/figures.html). See Exhibit 7.

30. Another form of art featured on the art.net site is poetry. A list of poets on art.net is attached as Exhibit 8. This list includes Simran Singh Gleason who has a gallery on the art.net site (http://www.artnet/Studios/Visual/Simran/poems/Simran-poems.html) that includes poems such as "Dawn of the Electronic Age Poet," a poem inspired by the newsgroup rec.arts.poem, and "Waterdreams," a poem illustrated by a digital picture of lakes, crashing surf, and eroding cliffs. The text of these poems is provided in Exhibit 9.

31. This collection of poems also includes a few works that some might consider indecent. Another poet on the Art on the Net Web site is Jennifer Crystal Fang-Chien, whose gallery (http://www.art.net/Poets/Jennifer/index.html) includes poems that address religion, the environment and relationships. See Exhibit 10. A stanza of Fang-Chien's poem, "Celestial Bodies," reads: "Only later, she would spit me out, condensed / and sudden. Her little-explored / center was not accustomed to menaces / of getting a good fuck, and / 'Fucking gays!'." Id.

32. Poems by Sylvia Chong that are featured on the art.net site also contain sexually oriented themes and metaphors. See Exhibit 11. Chong's poem "On Flirting W/ Virtue" (http://www.art.net/Studios/Poets/Schlong/virtue.html) reads: ". . . she has developed a / nervous tic b/c she dreams of / you too / often / you're soooo good & wonderful / & so full of piety even your / cock is holy-- / shit even I would do you / in a second & since evil / is a woman wouldn't she do / the same?". Id.

33. In addition to visual art and poetry, the art.net site also features the work of several sculptors. A list of the art.net sculptors and their work is attached as Exhibit 12. Kendra K. Davis, for example, has a studio on art.net (http://www.art.net/Studios/Sculptors/Kendra) that includes basketry and cast aluminum sculptures of human heads and busts. See Exhibit 13. 

34. Some sculptors on art.net, such as Arabella Decker, show work that involves nudity. Decker's studio (http://www.art.net/Studios/Sculptors/Arabella/homepg.htm) features "Do What?," a latex ground print of nude male and female figures from Decker's series "The Story of Adam and Eve (From a Snake's Viewpoint)," and "Democracy: White Bread Trophy," a sculpture of a nude supine woman from Decker's series "People Becoming Political Symbols." See Exhibit 14.

35. We also provide space on our site for the works of "hacker" artists -- artists who create art by using their computer expertise. See Exhibit 15. Don Hopkin's gallery (http://www.art.net/Studios/Hackers/Hopkins/Don/artindex.html), for example, features a variety of interactive computer art works.

36. Art.net also features video artists and animators such as Levi Kruger, who has posted in his studio (http://www.art.net/Studios/Animation/Levi) analog paintings and drawing that are created with color markers and watercolors. See Exhibit 16. In the near future, we also plan to feature audio artists, such as radio artists.

37. In addition to providing studio space for the various artists and works described above, art.net also provides a range of other services to our member artists. The art.net Web site posts schedules of art events, artist shows and exhibits, as well as art classes. We also provide information on political issues that affect artists, such as the ongoing fight for artists' right to publicly display their works on the streets of New York City. To access any of these various member services, a user can click on "Artist Resources," "Current Art Happenings," or "We Support Free Speech!" from our home page. See Exhibit 1.

38. Art.net also links to hundreds of interesting sites that offer a wide range of resources to artists and those interested in art. Such sites include online art journals and magazines, such as RUNE: An MIT Journal of Arts and Letters, a publication run by students at the Massachusetts Institute of Technology, which features visual art, computer art, and literature by MIT students and faculty (http://www.ai.mit.edu/~spraxlo/rune.RUNE.html), and the international art magazine Museos (http://www.ivc.com.mx/museos/museums.htm), which provides visual and written information about exhibitions worldwide.

39. Art on the Net also links to sites featuring online artist shows and exhibits, such as Janet Biggs's multimedia exhibit "Girls and Horses" (http://www.panix.com/~bcmar/jbiggs.html), which examines girls' relationships with horses, power, sexuality and autonomy.

40. Other sites that art.net links to include museums, such as the Louvre (http://mistral.culture.fr/louvre), and the Metropolitan Museum of Art (http://www.metmusuem.org/htmlfile/opening/enter.html).

41. The site also links to political organizations that are fighting for free speech on the Internet such as plaintiff American Civil Liberties Union; artist projects such as ArtAIDS, an Internet art project (http://www.artaids.org.uk) that showcases art work that touches on the continual impact of AIDS; and sites referencing literature, music, audio, and the visual art. Some of these sites may contain material that some might consider indecent.

42. There is a long history of censorship of the arts in the United States; even in the past decade there have been numerous attempts to censor the creation and display of controversial art in the United States. In 1989, for example, Washington's Corcoran Gallery refused to show an exhibition of bold photographs by Robert Mapplethorpe, organized and initially shown without objection by the University of Pennsylvania's Institute for Contemporary Art, even though Mapplethorpe was a National Endowment of the Arts grant recipient and many had acclaimed his work. The exhibit contained many homoerotic photographs. A Cincinnati museum director was also arrested on obscenity charges for choosing to show the Mapplethorpe exhibit, but the jury returned a not-guilty verdict, finding that the art was not obscene.

43. In 1990, the San Francisco Police and the Federal Bureau of Investigation raided the studio of photographer Jock Stuges, whose work has appeared in Aperture, Vogue, and Camera International and has been exhibited in New York's Museum of Modern Art, and seized his negatives, his photographic equipment and his business records. The raid was motivated by the fact that the subjects of some of Stuges's photographs were nude female adolescents. A federal grand jury declined to indict Stuges on charges of child pornography.

44. In 1996, the Baltimore Life Insurance Company pulled three works from Diane Fenster's series "A Ritual of Abandonment" from "Electronic Palette," an exhibition of computer-generated art in the gallery of their corporate headquarters. Baltimore Life pulled Fenster's works because they depicted nude female figures. In response to Baltimore's Life's censorship of Fenster's work, many of the other artists pulled their works from the show. Baltimore Life was forced to cancel the exhibit.

45. I am aware that indecency under the Act is defined to include work that "[c]onsidered as a whole, lacks serious literary, artistic, political and scientific value for minors." I do not know how to judge the artistic value for minors of the works that I have described above. For example, I do not know whether the work must have value for a six-year-old, or whether it would be exempt from prosecution if it has value for a sixteen-year-old. Because of this, I believe that the works I have described above are at risk of prosecution under the Act even though I believe that many, if not all of them have artistic merit.

Art on the Net's Inability To Prevent Speech from Reaching Minors

46. Art on the Net and our participating artists fear that we may be at risk of prosecution under the Act for providing constitutionally protected artistic expression that might be deemed "indecent" for minors. The Act's prohibition on communication of certain material to minors is in effect a broad censorship provision that completely bans all such communications over the Internet because there is no practical way for users on the Internet to limit these communications only to children. Moreover, the Act censors such communications on a global basis because there is no effective means to limit the dissemination of an online communication to a particular geographic region. As a result, all users of the Internet must conform their speech to what is suitable for minors in New York under the Act.

47. Neither Art on the Net nor its participating artists have any means of preventing our speech from reaching minors that is both technologically possible and economically feasible.

48. First, there is no technology available for Art on the Net or our artists to verify the age of an Internet user with whom it or its member artists are communicating via e-mail or mailing lists. An e-mail address provides no information about the fundamental characteristics of an Internet user such as name, gender, age, or geographic address; moreover, there is no directory or other resource that we or our member artists can use to verify the identity, age or gender of a user, the reason the user is utilizing our mailing list, or any other quality of an e-mail user. For the same reason, we cannot verify the age of users who receive messages posted to our mailing lists.

49. Credit card and age verification are not technologically possible for e-mail and mailing lists.

50. Credit card and age verification are technologically possible on the Web but pose insurmountable technological, economic and other burdens for Art on the Net and its member artists. Neither we nor our member artists currently have any system of credit card verification in place because neither we nor our member artists charge for our online resources. We are not aware of any commercial service that would verify credit cards for a noncommercial Web site. Moreover, even if this alternative was available, Art on the Net has limited resources; our budget for maintaining our Web site is currently less than $15,000 per year. We receive anywhere from 45,000 to 60,000 accesses on our site daily and over 4,000 unique hosts access our site every day. A system of credit card verification would pose tremendous costs to Art on the Net. Our artists are, for the most part, even less able to absorb the costs involved. 

51. We do not believe that credit card verification would actually prevent minors from accessing our site because many minors have access to credit cards. Credit card companies issue credit cards to minors. Minors can also obtain a stolen credit card or borrow a credit card from their parents -- either with or without their permission.

52. We also know of no already established, reputable means of identifying online adult users by access number or other identification; thus, we would be forced to develop our own user identification system in order to avail ourselves of the Act's defenses. The costs of inventing such a system and then implementing it -- requiring registration of all users who want to access our online services -- would be prohibitive for both us and our member artists.

53. We also do not believe that a registration system would actually prevent minors from accessing our site. If a users fills out a registration form and lists her age as eighteen, there is no way for Art on the Net or its member artists to verify that the user actually is eighteen.

54. Even if we could employ credit card screening or age verification -- which neither we nor our artists can -- Art on the Net and our artists would also have to take on the additional task of segregating all of the material that we provide into adult and children's sections. As stated above, artists on art.net curate their own sites and we would not want to take away this autonomy. Therefore, we would have to maintain additional employees in order to review recent additions and changes to all our artists' studios and to ensure that our Web site and our artists' Web sites segregate that material which is only appropriate for adults. Considering that we maintain at least 25,000 files on our site and that our member artists change the works in their studios frequently, this would be a tremendous task. 

55. Even if Art on the Net and our member artists were able to use and afford such credit card and age verification, they are contrary to our goal to provide a unique, easily accessible and low-cost means for artists to exhibit their work. In order to finance the cost of credit card or age verification, we would need to charge users of our Web site. Requiring us to charge for our speech would discourage users from accessing our site and ultimately cause us to close our site.

56. Moreover, one of the important qualities of the Web that makes it such a unique and useful information source is the ability to link between sites by simply clicking on hyperlinked text, which is often underlined. If a user was required to provide her credit card number each time she linked between different Web sites, her ability to surf the Web -- to link to art.net from other sites, such as other artist studios, museums, and artistic projects, and vice versa -- would be substantially curtailed. A user would no longer be able to visit three or four sites within a minute if she had to verify her credit card every time. Additionally, requiring credit card verification would limit visitors to the art.net studios to those adults who

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