Hi again, Andreas.
In February you'd responded to Fred as follows, 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:
"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 before 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 provides 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 ever bothered to look up).
18 U.S.C. 2256(2)(A) 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&Statute=22-24-27 and 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,
"All works hosted at the Commons must be legal to publish in the United States"
and
"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", 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.
----------------------------------------------------------------------------------------------------
DISCLAIMER: This email includes general legal information for discussion purposes only which is not guaranteed to be correct, complete, or up-to-date, and does not, nor is it intended to constitute, legal advice to any individual recipient (intended or unintended). Receipt of this email (intended or unintended) does not create an attorney-client relationship between the undersigned (who is no longer actively engaged in the practice of law) and any such recipient. No one should act upon the information contained in this email without seeking legal advice from their own attorney.
----------------------------------------------------------------------------------------------------
Best,
Charlotte