Hi again, Andreas.
In February you'd responded to Fred as
follows<http://lists.wikimedia.org/pipermail/gendergap/2011-February/000…ml>,
concerning pornographic images in Commons:
*"I have given notice that I perceive there to be a problem on-Wiki many
times, and the reply has always been the same: Wikipedia is not censored.
The suggestion that our editorial judgment with respect to illustration
should reflect and be based on the judgment our sources exercise in that
regard has not gone down well. We are all agreed that when it comes to
text content, we must follow sources. When it comes to images, however, the
community claims the freedom to apply its own ("OR") standards, which
naturally reflect our skewed demographics."*
Yes, after reading this thread I wandered through that hall of mirrors that
discussions of Sexual Content policies and guidelines constitute on Commons.
As Batman might say, "Holy Ontological Incoherence!!!"
You'd also responded to Fred and asked the
list<http://lists.wikimedia.org/pipermail/gendergap/2011-February/000184…
:
*"On a different, but not completely unrelated issue, how do women editors
feel
about illustrations like those used here (Warning - not safe for viewing at
work):
http://en.wikipedia.org/wiki/Hogtie_bondage
http://en.wikipedia.org/wiki/Bukkake
In my experience, any attempt to argue for editorial restraint in
illustrating
pages like this (e.g., using just *one* image, and leaving the rest to a
Commons
link) runs into a [[WP:NOTCENSORED]] brickwall. Female editors (with one
exception I believe, who has run into this brickwall repeatedly to no
effect,
and at some cost to herself) are rarely participants in such discussions."*
Unless the "primary producers" of the "Hogtie bondage" photos obtained
and
tagged them with all the data required by the Section 2257 regulations
issued under the Child Protection and Obscenity Enforcement Act of
1988<http://en.wikipedia.org/wiki/Child_Protection_and_Obscenity_Enforce…
uploading them to Commons,
*and* Commons is storing that data and those tags along with the photos in
order to make them available to any would-be user, any such photos -- by
Commons' *own* standards -- should be speedily deleted (although from my
review of the various archived and recent Sexual Content discussions there,
this might come as a terrible shock to all or most of the Commons editors
who've weighed in on those discussions).
Section 75.1(n) of the 2257
Regulations<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid…
that "Sexually explicit conduct has the meaning set forth in 18
U.S.C. 2256(2)(A)" (which -- unsurprisingly by now -- I could find
*no*evidence of
*any* Commons editors having *eve*r bothered to look up).
18 U.S.C. 2256(2)(A)
<http://www.law.cornell.edu/uscode/718/usc_sec_18_00002256----000-.html>
provides:
(A) Except as provided in subparagraph (B) [pertaining to child
pornography], “sexually explicit conduct” means 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"
"Sadistic or masochistic abuse" traditionally means, in virtually all states
of the U.S.:
"...flagellation or torture by or upon a person who is nude or clad in
undergarments, a mask or bizarre costume, or the condition of being
fettered, bound or otherwise physically restrained on the part of one who is
nude or so clothed."
http://law.justia.com/codes/idaho/2010/title18/t18ch15sect18-1514.html See,
also, e.g.,
http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Stat…
http://law.justia.com/codes/idaho/2010/title18/t18ch15sect18-1514.html
"Mask" is usually be deemed to include any kind of gag.
So, pausing a moment to review, it's highly likely that all or most of the
photos on that page would be subject to Section 2257 recordkeeping
requirements by "primary producers" (photographers, filmmakers, etc.) and
"secondary producers" who display, disseminate, etc., the photos for sale or
"trade" (such as exchanging photos with other aficionados). I suspect that
the Wikimedia Foundation relies on the educational institution exemption in
order not to have to meet the Section 2257 recordkeeping or notice
requirements, but if Commons *doesn't* require the submission along with the
upload of such photos (or videos) of *all* the required Section 2257
documentation, then it would be* illegal* for any would-be U.S. commercial
"secondary producer" to utilize any of them.
According to the Commons:Copyright tags
page<http://commons.wikimedia.org/wiki/Copyright_tags#Non-U.S._works>
,
"All works hosted at the Commons must be legal to publish in the United
States"
and <http://commons.wikimedia.org/wiki/Copyright_tags#Unfree_licenses>
"The following copyright options are not acceptable at Commons. Images with
these tags will be deleted...
{{Noncommercial}} - Noncommercial copyright status. *This image will have to
be deleted*."
Although none of these Hogtie bondage photos may be marked "noncommercial,"
if Commons cannot supply a would-be U.S. commercial secondary producer with
all the data and tags required to be supplied under Section 2257 by the
primary producer and maintained by both of them for U.S. government
inspection, then those photos have *effectively* been rendered
"noncommercial use only" by *operation of law*.
I may weigh in further, later, as my schedule permits, on the sheer
ontological incoherence (not to mention ethical squalor and possible
tortiousness) of seeking at most only an "affirmation of consent" from
"uploaders
of self-produced sexual
content"<http://commons.wikimedia.org/wiki/Help:Sexual_content#Proh…content>,
as well as on the dubious legality of the bukkake image, but hopefully this
will give those on this list who share your concerns something to chew on in
the meantime.
And given that this email has focused on legal issues, I also need to
include the requisite disclaimer.
*
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(intended or unintended) does not create an attorney-client relationship
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Best,
Charlotte