On Thu, May 31, 2012 at 6:10 PM, Andreas Kolbe
<jayen466(a)gmail.com> wrote:
No. Record-keeping is required by law for images
whose production
involved actual people engaged in sexually explicit conduct, meaning
"actual or simulated—(i) sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between persons of the
same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or pubic
area of any person."
http://www.law.cornell.edu/uscode/text/18/2256
If creation of the image did not involve real people engaged in such
conduct, no record-keeping requirements apply.
Note that while the Wikimedia Foundation, due to Section 230(c) safe
harbor provisions, does not have a record-keeping duty here, my layman's
reading of
http://www.law.cornell.edu/uscode/text/18/2257 is that every *individual
contributor* who
– uploads an image depicting real people engaged in sexually explicit
conduct, or
– inserts such an image in Wikipedia, or
– manages such content on Wikimedia sites,
thereby becomes a "secondary producer" required to keep and maintain
records documenting the performers' age, name, and consent, with failure to
do so punishable by up to five years in prison.
Note that this includes anyone, say, inserting an image or video of
masturbation in a Wikipedia article or categorising it in Commons without
having a written record of the name, age and consent of the person shown on
file.
I've asked Philippe Beaudette to confirm that this reading is correct. He
has said that while they cannot provide legal advice to individual editors,
they will put someone to work on that, and that it will be a month or so
before they can come back to us.
Let me try and give the whole context here. Actually,
the Wikipedia article[1] on this subject explains the situation much
better. I'm sure, finer legal minds reading this can correct where I go
wrong. I am a layman too, and this is my inference from reading about the
subject.
The law you are speaking of is part of Child Protection and Obscenity
Enforcement Act of 1988 or and the guideline enforcing them is 2257
Regulations. It actually placed the burden of record keeping, on the
primary producers, as in, who is "involved in hiring, contracting for,
managing, or otherwise arranging for, the participation of the performers
depicted,". In its original form, it only placed the burden on producers of
pornographic material to comply with record-keeping.
Now, things got complicated when DOJ added an entirely new class of
producers you speak of "secondary producers", anyone who "publishes,
reproduces, or reissues" explicit material. This is where things get
complicated. What followed was a circuit court decision, and other
proceedings, that ruled these requirements were facially invalid because
they imposed an overbroad burden on legitimate, constitutionally protected
speech.
That's pretty important then, right? Because IIRC circuit court decisions
inform judgement in later such cases - and the only way the legal
interpretation can be rejudged is in a full appeals court?
Tom