On 8/8/05, Ray Saintonge <saintonge(a)telus.net> wrote:
There is another major difference from what you describe for the adult
film industry: the length of time for which the records will need to be
kept. In their case the records may not be necessary once the
prosecution limitation period has expired. We may need to track these
permissions for 70 years or more.
There is no limitation for prosecution for distribution of child
pornography: if the distributor is still distributing the material, the
proof of age must be in safe keeping available for inspection. Given the
nature of content (once produced, cheap to reproduce and sell), it is
entirely plausible that much adult material will require documentation on
file <i>beyond</i> the copyright period. (In fact, having the documentation
available in a vault somewhere may prove more powerful than copyright to
keep this form of content and the profits it generates in the hands of the
original distributor for long past the time when the content's copyright
expires, since no one else could distribute it without having the proof on
file!) Further, if there is profit in the future in "vintage" porn as there
is today, the adult industry may have to keep records for literally hundreds
of years, even if copyrights are never extended again.
I don't believe either has a lower standard of diligence, nor necessarily a
shorter term to keep on file.
I think this is important enough that the Wikimedia Foundation would be well
served by having a licensed attorney review this particular issue rather
than rely upon the thoughtful consideration of interested people such as you
Perhaps a layperson can serve a trustee of records, however, this person
should be fully informed of the legal ramifications and liabilities they may
expose themselves to in accepting this role.
For example, it is plausible that the trustee will have to occasionally
issue the equivalent of "sufficiently reliable permission obtained for use"
rulings regarding copyright works. If they were wrong, could the Wikimedia
Foundation be found liable for damages resulting from the error? Could they
be held personally liable for damages for the error? Would or could the
Wikimedia foundation indemnify the trustee from harm resulting from their
decisions? I don't think that these are the sort of questions a mailing list
discussion can answer with sufficient authority.
However, I do think we need an official "copyright permissions record
keeper" of some sort. Whether that is an individual or a group is less
important at this time. But it should be someone fully qualified for and
aware of the position's requirements and hazards. To me, this indicates a
possible need for an attorney on retainer, but could see where (less
cautious) others may choose to fill this role as a volunteer.