On Thu, May 31, 2012 at 9:23 AM, Caroline Becker <carobecker54@gmail.com> wrote:


The Flickr account has been closed down (usually for breach of Flickr's terms of service). Note that there are no 18 USC 2257 records demonstrating that the persons depicted were 18 or over. According to my understanding of US law, any Wikimedian who uploads or inserts such an image without having documentation of model age, name, and publication consent is in breach of US law; see discussion at http://meta.wikimedia.org/wiki/User_talk:Philippe_(WMF)#Implications_of_2257_record_keeping_requirements_for_editors.3F

Andreas

Does it also apply to artwork of nude underages, such as http://commons.wikimedia.org/wiki/Category:Boy_playing_jonchets_by_Julien-Charles_Dubois or the trillion paintings with nude babies ?


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. 

Andreas