As of July 8th, 2018, the Indiegogo page for Dustin Mills’s THE HORNET’S DISCIPLE AND THE SCARS SHE LEFT displays a notice that the campaign was closed due to violation of the site’s Terms of Use. Those terms went into effect over two weeks after the campaign ended.

Indiegogo’s new censorship policy pits the site against independent filmmakers

Ever since it launched, crowdfunding platform Indiegogo has helped independent filmmakers raise the money needed to realize their vision. Genre filmmakers have had a good run on the site, from larger-scale projects like Jeremy Gillespie and Steven Kostanski’s The Void (which raised over $80,000 and was picked up for distribution by Screen Media Films in the United States) to Steve Rudzinski’s CarousHELL (which only raised about $1500 but still got made into one of the weirdest and funniest nano-budget indie horror films in recent memory). The site has also played host to projects with more overtly risqué content such as sci-fi sex comedy Space Babes from Outer Space and the Don’t Fuck in the Woods movies. However, a recent change to the site’s Terms of Use has the potential to make the site much less friendly for independent genre filmmakers, and has left at least one creator in a very difficult situation.

Ohio-based independent filmmaker Dustin Wayde Mills ran a campaign for his new film The Hornet’s Disciple and the Scars She Left that launched in April and ended on May 7th. Since that day, Mills had been waiting for Indiegogo to disburse the collected funds to him in order to ship the perks from the campaign. The film is finished and all the physical materials are ready to send to eager backers. After two months of waiting, Indiegogo deleted Mills’s account and refunded all the contributors their money on July 8th without warning. This leaves not only the fans who pledged to the campaign hanging, but Mills on the hook for repaying the investors who helped back the film behind the scenes before the campaign even launched.

Campaign backers received a notice that the campaign was canceled because it was in violation of the site’s Terms of Use, and a similar notice is now posted at the top of the film’s Indiegogo page. And while it is entirely within Indiegogo’s rights to change the Terms of Use of their site, the updated Terms of Use under which Indiegogo has canceled Mills’s campaign went into effect on May 25th — over two weeks after the campaign ended. The site’s previous Terms of Use, under which Mills’s campaign had been approved and allowed to run its course, had been in place since January of 2017.

Limited Indiegogo campaign edition of AMERICAN GUINEA PIG: BOUQUET OF GUTS & GORE, as posted on the film’s Indiegogo page.

The larger problem here is not that the site can change their Terms of Use whenever they want. The problem is that they can retroactively cancel a campaign if they decide it violates Terms of Use that they hadn’t yet implemented when the campaign ran. This should be a major red flag for genre filmmakers, who already often find themselves the target of censorship if they’re making films with explicit violence, nudity, and/or sexual content. This has not previously been an issue for filmmakers who have run campaigns on Indiegogo; for example, see Unearthed Films’s campaigns for their American Guinea Pig series. It seems unlikely such extreme content would make it past the site’s updated Terms of Use going forward.

While it may seem as simple as a company growing large enough to become skittish about associations with “questionable content,” the issue behind Indiegogo’s change in its Terms of Use may be influenced by something more tangible and with a much larger impact on the Internet at large. At the end of June, Patreon suspended the accounts of a number of artists whose posts included “implied nudity.” One of these artists is filmmaker Vex Ashley of Four Chambers, who has used the site for years to fund the company’s production of explicit video and who had actually transitioned into content creation as a full-time job thanks to the support of patrons. Following the passage of SESTA/FOSTA by the Trump administration, Ashley posted an impassioned piece on Medium about the legislation’s potential ramifications for adult content creators and other sex workers who use the internet to advertise and screen clients. Sure enough, two months later Patreon suspended her account and those of many other content creators likely due to pressure from payment platforms like PayPal.

Protest against SESTA/FOSTA on June 2nd, 2018. (Gizmodo, photo by Danielle Blunt)

While SESTA/FOSTA was purportedly devised to protect victims of human trafficking, their passage has had immediate and wide-ranging effects on a variety of sites and services that have no direct relation to sex work. In a thorough report examining the implications of the legislation for Vox, Aja Romano explains how the bills represent a massive change to one of the fundamental defining characteristics of the Internet:

But the bills also poke a huge hole in a famous and longstanding “safe harbor” rule of the internet: Section 230 of the 1996 Communications Decency Act. Usually shorthanded as “Section 230” and generally seen as one of the most important pieces of internet legislation ever created, it holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 has allowed the internet to thrive on user-generated content without holding platforms and ISPs responsible for whatever those users might create.

In the days following the passage of SESTA/FOSTA, a number of sites running personal ads for dating — including Craigslist — shut down those ads wholesale. Entire sites like Backpage disappeared. Starting May 1st, Microsoft banned “inappropriate content” from their online services and their new terms of service clearly state that the company “reserves the right to review Your Content” in order to investigate potential infractions. This means that if a Microsoft employee suspects — for literally any reason — that a person may be guilty of violating the company’s terms of service, Microsoft has the right to review all of that person’s Skype calls, their documents in Office 365 or OneDrive, Xbox Live account, etc. in order to “investigate.”

In short, SESTA/FOSTA was supposedly put into place to prevent sex trafficking, but it seems to have done more harm than good in that respect. And further, it has given companies like Microsoft more power to ignore privacy concerns of their users. It has also opened the doors for wide-ranging censorship on sites and services from personal ads to artist patrons to video chat, file storage, gaming, and crowdfunding.

Artwork from the Indiegogo for DON’T FUCK IN THE WOODS 2. (Indiegogo)

Given the new Terms of Service instituted by Indiegogo, chances are that Shawn Burkett’s Don’t Fuck in the Woods 2 would not be approved by the site if Burkett were to attempt to launch the campaign now. But Burkett‘s latest campaign ended on April 17th — more than a month before the site’s new Terms of Service went into effect. More importantly, Indiegogo apparently disbursed the collected pledges to Burkett in a timely manner. If there had been some sort of delay that pushed the disbursement past April, would Indiegogo have held the nearly $15,000 raised during the campaign until July before deleting his account and refunding all his backers as well?

Indiegogo has unsurprisingly not been forthcoming with an explanation for its cancelation of Dustin Mills’s campaign long after it had ended. After an initial form email to Mills explaining his account had been frozen “due to unusual activity” on Sunday July 8th, the site’s support only responded once to Mills’s requests for further information. In that response sent early in the morning of Monday July 9th, they confusingly claimed that the campaign was “too risky to continue raising funds through Indiegogo”:

Screenshot of the email from Indiegogo Support to Dustin Wayde Mills.

What exactly this means is unclear, since the raising of funds had ended on May 7th. What is clear is that the site had approved the campaign in April, allowed the campaign to run successfully to completion (including collecting pledges from backers) and end on May 7th — at which point the campaign was no longer actively raising funds. It is probably not a coincidence that all this took place in the wake of SESTA/FOSTA, which holds sites like Indiegogo responsible for everything even tangentially related to the campaigns the site hosts. As part of the promotion of the film, Mills ran a Snapchat and Tumblr as the main character of the movie, and they contained some nudity and violent images. Indiegogo may have decided that allowing backers access to that content violated their new terms of service, even though none of that content featured explicit sex acts or real violence.

In other words, there is nothing in the bonus content provided to backers that is not also in the film itself. If this is indeed why Indiegogo retroactively canceled the campaign, it raises some serious questions as to what is and is not appropriate for filmmakers — particularly genre filmmakers — to provide backers as incentive for pledging. Hypothetically speaking, if a 16-year-old with a Visa card wanted to back something like Mills’s film or Don’t Fuck in the Woods 2 (which presumably has at least an R-rated level of violent and sexual content), Indiegogo would be responsible for providing that content to them under SESTA/FOSTA. The same goes for any content creators who are making anything that would garner more than a PG-13 or equivalent rating, which severely narrows the type of projects Indiegogo may allow going forward.

Frustratingly, Mills is a victim of being in the wrong place at exactly the wrong time. Indiegogo has locked him out of his account so he cannot access the list of people who backed the campaign, if that information is even stored on the site any more since all the backers were refunded. He’s stuck trying to figure out how to pay back his investors and how to get the product that he’s already paid to have manufactured into the hands of the people who ordered it — at least once he’s able to figure out who those people are and how to receive their payment. Mills and his film may be an isolated case now, but as sites like Indiegogo and Patreon tighten the restrictions on what sort of content they will allow, other filmmakers and artists may find themselves in similar situations as Terms of Use continue to be modified.

Crowdfunding has had a major impact on independent artists over the last decade, helping level the playing field for filmmakers who otherwise would have to struggle to find investors for commercially iffy or outright bizarre projects. And this is hardly the first time a crowdfunding platform has suspended a campaign for content after an initial approval — back in 2012, Kickstarter suspended a relatively high-profile campaign to bring Radley Metzger’s The Opening of Misty Beethoven to Blu-ray. But the endless possibilities that crowdfunding platforms have provided artists are at a serious risk of being restricted or lost entirely as Internet freedoms at large are increasingly curtailed by governments acting in the interests of corporations rather than individuals.

While genre fans may think that politics doesn’t have an effect on their little corner of cinema and the Internet, the developments in the wake of SESTA/FOSTA will hopefully at least alert them to the fact that this is simply not true. Supporting independent artists is a noble cause, but just buying art directly from them is not enough when their ability to make that art in the first place is in jeopardy.

Anyone interested in helping protect online privacy, free speech, and innovation should visit the Electronic Frontier Foundation for more information on how to make your voice heard.